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/ 



J 



HARVARD 



LAW REVIEW 



Vol. XIX. 
1905— 1906 



CAMBRIDGE, MASS. 

THE HARVARD LAW REVIEW ASSOCIATION 

1906 



IV HARVARD LAW REV/EIV. 

PAOB 

Presumption of the Foreign Law. ^/^rr/ Martin KaUs 401 

Promoters, The Liability of Corporations on Contracts made by. 

H. S, Richards 97 

Railway Rate Regulation. Adelbert Moot 487 

Respondeat Superior in Admiralty. Frederic Cunningham 445 

Seamen, Liability in the Admiralty for Injuries to. Fitz-Henry 

Smith, Jr 418 

State and Official Liability. Edmund M, Parker 335 

Transfers of After-Acquired Personal Property. Samuel Williston , 557 
Vested Gifts to a Class, The Rule against Perpetuities and. Albert 

M, Kales 598 



TABLE OF CONTENTS. 



INDEX-DIGEST. 



References in heavy^iaced tjrpe are to Noras and Ravisws; in plain type to Rbcbnt Cases; and in 
italidzed type to Articlks. Criticisma of articles in other publications are also indicated in the annual 
periodical index which follows this index. 



ABUTTINQ OWMilKB. 

Sec HighvHiys. 
ACTIONS. 

Particular forms of actions, see Trespass. 
Motive in instituting action as defence 
thereto. 376 

ACCORD AND SATISFACTION. 
See also Consideration, 
Validity : Nature of accord and satis- 
faction. 58 
Bffect of aooord executed: Unen- 
forceable executory agreement ac- 
cepted as satisfaction : effect. 58 
ADBCENISTRATION. 
Of estates, see Executors and Adminis- 
trators, 
ADBCENISTRATIVE LAW. 
See also Constitutional Law, 
General discussion of French adminis- 
trative law, criticising Dice/s com- 
ments thereon. 335-349 
ADMINISTRATORS. 

See Executors and Administrators. 
ADMIRALTY. 

See also Salvti^e ; Seamen, 
Torte: Extension of Respondeat Su- 
perior doctrine to Admiralty. ^5- 

Division of damages between two tort- 
feasors. 129 

Liability of ship for wilful tort of sea- 
man. 209 

ADVBRSB P088BS8I0N. 

See also Dedication ; Disseisin. 

Who may gain title by adverse 
possession: Remainderman under 
void devise through occupancy of 
life tenant. 59 

Rights resulting from adverse posses- 
sion of one claiming less than the 
fee. 463 

Against whom title may be 
gained : Remainderman in favor life 
tenant under void devise. 59 

ADVJJKTISBMENTS. 

Nature of interest created by contract 
for display advertisement. 526 

AFPRBiaHTBflENT. 

See Shipping. 



AaENCT. 

See also Larceny {Consent) : Charities 
and Trusts for Charitable Uses; Mas- 
ter and Servant. 

Creation of agenoy: Special police 
officer : whether agent of employer. 

210 

Frinoipal's liabiUty to third per- 
sons in oontraot : Disclosed prin- 
cipaPs rights and liabilities under 
agent's contracts with third persons. 

Respondeat superior : carrier's liability 
for delay by strike. 54 

Undisolosed principal's rights and 
liabilities with respeot to 
third persons : Offer to contract 
adopted by undisclosed principal be- 
fore acceptance. 296 

2>rinoipal'8 UabiUty to third per- 
sons in tort: Deceit by agent: 
principal's liability for. 391 

Respondeat superior: Extension of doc- 
trine to admiralty. 44^-4^2 

Principal's liabili^ for acts of in- 
dependent oontraotors: Who 
are independent contractors: fore- 
man appointed by labor-union. 540 

Agenfs liability to third persons : 
Contractual responsibility on sealed 
instrument when principal is ficti- 
tious. 59 

Termination of authority : Revoca- 
bility of agent's authority: power 
coupled with an interest: general 
discussion. 287 

Revocation : Power of agent without 
knowledge thereof. 374 

Revocation : effect of actual and con- 
structive (by record) notice to third 
parties : general discussion. 373 

AUXSNATION, RESTRAINTS ON. 



In devise to separate use of married 
woman. 475 

AUXSNS. 

See also Chinese Exclusion Acts, 

Fraud in decree of naturalization : 

whether state court may vacate on 

account of. 297 

Naturalization of alien unable to speak 

English. 302 



VI 



HARVARD LAW REVIEW. 



References in heaTy-beed type are to Nores and Rsvnws; in plain type to Rbcsnt Casbb: and in 
itaUdied type to Abticlss. CritickBia of aftidea in other pablkationa are alio indicated in the annual 
periodical indea which follows this index. 



m coal 



Naturalization: general discussion of 

reauisites for. 
Naturalization of partidpants 

riot. 39a 

Non-resident aliens: Rights of under 

statute for death by wrongful act. 

215 

ALiMoxnr. 

See under Marriage; Divorce, 

ABiXySBM HWTB. 
Public places of amusement as public 
service companies, see Publu Ser- 
vice Compamis, 

AXnBCALS. 
Damage to panoiia and ohattela by 
ammala: What amounts to keep- 
ing and harboring sufficient to im- 
pose liability. 463 
Bees : damage by. 61 5 
Treapaaa on realty by 

Liability of municipal corporation : 
see Municipal Corporations (Lia- 
Miiyfor Torts), 
Bees: liability for trespass by. 615 

ANNBZATION. 

Effect on existing laws : see IntemaOonai 
Law, 



APFBAXm Aim BRROR 

Mandate of ai)pellate court remanding 
and reversing cause : effect of. 533 

APPOmnCENT, FOWBR OF. 

See Powers, 
A88AX7LT AND BATTIIRT. 
CivU liabUity : Physician's liability for 
operation without patient'b consent. 

A88Zain«BXIT8. 

Of choses in action, see Ckases in 
Action ; Conflict of Laws {Assign' 
ment of Choses in Action). 
Of judgments, w&t Judgnunts, 
ATTACHMENT. 

Rights of holder of bill of lading when 

ffoods attached are in possession of 

bailee. ^o 

Whether realty attached is in possession 

of court. 210, 377 

ATTORNST-aHNBRAL. 

Position of state attorney-general. 524 
ATTORNS78. 
Compensation and lien: Uen of 
stock-holders' attorney on fund re- 
covered for corporation. 211 
Priority over right of setoff. 211 



B 



BAZZ1B8ENT8. 

See I '^nkiepers^ 
BANB31UPTCT. 

See also Receivers, 
Preferences : Perfecting inchoate right 
to security by recordmg mortgages. 

297 

Perfecting an inchoate right : taking 

possession under a prior bill of 

sale. 211 

Priority obtained within statutory 

period by act done before. 212 

Transfers of after-acquired property as 

effecting preference : perfection of 

inchoate rights. 557-5^5 

Whether surrender necessary before 

proof. 59 

Appointment, Qnallfioatlon and 
Tenure of troatee : Effect of 
debtor's interference in election of 
trustee. lod^u^ 

Proof of claim: Sworn statement of 
claim as evidence under Act of 18^ : 
duty of going forward on objectmg 
party. 53* 

Provable olaima: Set-off of dishon- 
ored certified check paid by drawer 
after drawee's insolvency. 212 

Partnership and individual claims 
and assets : Administration of non- 
bankrupt partner's estate. 615 



Bzemptions: Life insurance policy: 
meaning of " cash surrender value." 

377 
Discharge : Debts not discharged : 
Liabilities for support of wife or 
child. 297 

Effect of discharge : whether stock of 
bankrupt regarded as paid up in 
distribution of corporate assets. 377 
Receivers : Ancillary receivers : power 
of federal court to appoint. 543 

BANKS AND BANKING. 
See also Bills and Notes {Checks). 
Deposits : Tentative trusts in savings 
bank deposits, see Trusts, 
Director's liability for deposit received 
after known insolvency. 616 

Liability for deposit to personal ac- 
count of check made payable to 
trustee. 
Revoked check ; election of remedies 
for payment of. 130 

Collections : Check sent drawee 
bank for collection : liability of de- 
positary on drawee's insolvency. 464 

BBQUBBTB. 

See Legacies and Devises, 
BILLS AND NOTBS. 
Negotiability: Certainty in amount: 
unpaid interest made part of prin- 
cipal. 60 



TABLE OF CONTENTS. 



VII 



Rtfarmoet in heaTjr-fteed type are to Notbs and Rivnws; in plain type to Rksnt Casbs; and in 
italicised tfyt to Articlbs. Criticiama of articles in oUier publications are aleo indicated in the 
annual periodical index which follows this index. 



Joint-Btock company's bond on which 

stockholders not liable: whether 

negotiable. 6x6 

Checks : Certified check : general 

discussion of relation of parties. 143 

Nature of drawer's liability. 212 

Certified checks fraudulently obtained: 
bank's liability for dishonor of. 143 

Revoked check : election of remedies 
for payment of. 130 

Set-on oi dishonored certified check 
paid by drawer after drawee's in- 
solvency. 212 
Porohasers for Talne without no- 
tice : Acquisition of title from 
thief. 55 
Defenses: Notice to indorser where 
maker dead: whether required 
under Negotiable Instruments Law. 

312 

BILL OF EZCBPTIOXn^. 

See Exceptions^ Bill of, 
BZLL8 OF LADXNGK 
See also SaUt. 
Fraudulent issue by agent: principal's 
liability therefor. 391 

BZLLB OF PBACB. 

Bill by assignee of a corporation for 
unpaid stock subscriptions. 213 



BOARDnra houbbs. 

See Innkeepers, 

BONDS. 

For administration bonds, see under 
Executors and Administrators, 

Forced transfer: liability for, see Con^ 
strtutive Trusts, 

Indemnity bond to city by negligent 
contractor: whether excluding tort 
action. ij8 

BRIBBRT. 

See Illegal Contraett. 

BROKBR8. 

Stocks carried on margins : relation be- 
tween broker and principal : gen- 
eral discussion. 529 

— sale by broker without notice to 
customer. 539 

BURDBN OF PROOF. 
Duty of going forward with evi- 
dence in particolar oases: In 
bankruptcy, see Bankruptcy, 
Incorrect transmission of telegram: 
dutv on telegraph company. 474 
Proof of foreign law. 401-417 



CARRZBR8. 

See also Railroads: Shipping. 

Control and Regulation: Dependent 
services of common carrier : general 
discussion. 144 

Dnty to aooept and carry pas- 
sengers : Blindness as a ground 
for rejection. 29S 

Delay : Damages from special circum- 
stances of which earner has notice. 

Strike: liability for delay caused oy. 

54 

Discrimination and overoharge: 

Personal discrimination in carrier's 
own favor by carrier acting as 
dealer. 453 

Exclusive privileges granted to certain 

heckmen. 298 

Who are passengers : When relation 

begins : boarding car. 131 

Gratuitous carriage of employee re- 
turning from work. 130 

Position of one having paid fare. 

— waiting at station for train. 2^2'2S4 

— boarding a moving train. 2^4-2^^ 

— boarding street car or omnibus. 

— riding in place not intended for 



passengers. 



2^1^262 



— stealing a ride. j^j6s 

— guest of servant of carrier. 2qs''266 
Bjection of passengers: Wrongful 

refusal of agent to sign contract for 
transportation. 60 

Personal injuries to passengers: 
Conductor's assault on passenger in 
another car : liability for. 378 

Injury from defect in station to which 
expectant passenger admitted with- 
out authority. 378 

Blevators : Duty of care owed to 
passengers. 300 

CBMBTBRIBB. 

Life tenant's right to grant burial per- 
mits. 205 

Nature of rights of purchasers of lots : 
general discussion. 205 

CBBBION. 

Effect on existing laws, see Interna^ 
tional Law, 

CHARITIE8 AND TRUBTB FOR 
CHARITABLB UBB8. 
Creation and enforcement of chari- 
table trusts : Validity of trust per- 
formable outside of jurisdiction of 
its creation. 457 

Visitatorial power not retained by 
settlor : who shall exercise. 545 



Vlll 



HARVARD LAW REVIEIV. 



References in heavy-faced type are to Notes and Rsvutws ; in plain type to Rccbnt Cases ; and in 
italicized type to Asticlbs. CriticiBms of articles in other publications are also indicated in the 
annual periodical index which follows this index. 



Charitable bequests and devises : 

Validity of trust performable out- 
side ot jurisdiction of its creation. 

457 
Charitable Bequests: Bequests to 
unincorporated charitable associa- 
tions. SOS 
Cy-prte doctrine: Recognition of 
doctrine in New Jersey. 545 
Rights and liabilities of ohsui- 
table organizations: Negligence 
of agents : to what charitaole ex- 
emption from liability extends. 464 

CHATTEL MORTaAaSS. 

Nature and requisites : Stocks carried 
on margin: transaction construed 
as chattel mortgage. 529 

Rights of intervening creditors: 
Priority of subsequent lien for repairs 
over recorded chattel mortgage. 617 

After-acquired property : In general. 

jsv-s^s 

CHATTELS. 

See Personal Property, 
CHINESE EXCLUSION ACTS. 

Right of appeal to federal courts by 
Chinaman claiming citizenship. 60 

CHOSES IN ACTION. 

Situs of, see under Conflict of Laws, 
See also Conflict of Lams {Assignment 
of Chose s in Action), 

CHARTERS. 

See under Corporations, 
CHECKS. 

See under Bills and Notes, 
CITIES. 

See Municipal Corporations, 
CmZENB, 

See Chinese Exclusion Acts. 
CLASS LEaiSLATION. 

Sec Constitutional Law (Privileges &* 
Immunities: Class Legislation), 
CO-DEFENDANTS. 

S^e Joint Obligors. 
COLLATERAL ATTACK. 

On judgments, see \xndtT Judgments, 
COLLECTIONS. 

By banks, see under Banks and Banking. 

COLLEGES AND UNIVERSITIES. 

Negligence of agent : whether exempt 

from liability therefore. 464 

COMBINATIONS. 

See /Restraint of Trade, 
COMPOSITION WITH CRED- 
ITORS. 
Agreement for part payment by one 
joint debtor as discharge of other. 

»3» 



CONDITIONAL SALES. 

See under ScUes, 

CONDITIONS PRECEDENT. 
Excuse for non-performance : 

Acceptance of defective performance 

as excuse. 208 

Waiver by repudiation of promisor. 

CONFESSIONS. ^ 

See under Evidence, 

CONFLICT OF LAWS. 

Jurisdiction for divorce, see Domicile. 

Presumption of foreign law, see Pre- 
sumptions. 

See also Burden of P^*>of ; Domicile ; 

Jntemational Law ; Taxation. 

Recognition of foreign judgments : 

Dormant judgment: enforcement of 

by sister state. 137 

Foreien corporation : right of, to sue 
on foreign judgment. irj 

Situs of choses in action : Garnish- 
ment of debt owed by non-resident. 

13a 

Jurisdiction quasi in rem : Situs of 
choses in action for purposes of 
garnishment. 132 

Jurisdiction for divorce: Extra- 
territorial validity of divorce granted 
without personal service. 61 

General discussion of requirements 
for jurisdiction: Haddock v. Had- 
dock. S^^S97 

Remedies : xight of action : Suit be- 
tween foreigners on foreign tort. 6 1 8 

Re m e d i e s : procedure : Remedy 
changed where right of action ac- 
crued: action thereafter in foreign 
state. 617 

Intestate succession: Relation of 
different administrators of the same 
deceased. 627 

Testamentary succession: Validity 
of trust performable outside of juris- 
diction of its creation. 457 
Will valid by law of domicile, valid 
evervwhere. zaa 

Execution of power : Will executing 
power: sufficiency determined by 
what law. 122 

Obligations ex delicto: creation 

and enforcement. 

English and American rules : general 

(Hscussion. 295 

Enforcement of foreign patent : action 

for. 295 

Suit between foreigners on foreign 

tort. 618 

Effect and performance of con- 
tracts: Provision rendering insur- 
ance policy subject to foreign law. 

»32 



TABLE OF CONTENTS. 



IX 



References in heaYy-laced type are to Notes and Rkvibws; in plain type to Ricbmt Cases; and in 
italidxed type to Articles. Criticisms of articles in other publications are also indicated in the annual 
periodical index which follows this index. 



AMignment of ohoses in action: 

Reversionary interest in trust fund : 
what law governs assignment of. 

6i 
InsolTency and bankruptcy: An- 
cillary receivers in bankruptcy 
power of federal court to appoint 

Rights and obligations of fore^in 

corporations: Service of process 

on foreign corporations that have 

ceased to do business in state. 5a 

Taxation of foreign corporations. 67 

CONSXniT. 

See Larceny; Physicians and Sur- 
geons. 

CONSIDERATION. 

Consideration moving from promisor 
not essential in unilateral contract. 

379 

Theories of consideration: Pre- 
existing lesal duty: theory of its 
effect in unilateral contracts. 379 

Validity of consideration in partic- 
ular classes of cases: Promise 
to do legal dutyi reciprocal prom- 
ises as cross-otters to pair of uni- 
lateral contracts. 379 

What constitutes the consiaer- 
ation in particular classes of 
cases: Composition agreement with 
joint debtor as accora and satis- 
faction. 131 
CONSTITITnONAL LAW. 

Sec also Conflict of Laws; Corpor- 
ations ; Eminent Domain; Federal 
Courts ; Interstate Commerce; Tax- 
ation* 

Nature and development of con- 
stitutional law: Unwritten con- 
stitution in the United States: 
whether there is. 547 

Construction, operation and en- 
forcements of constitutions: 
State constitution : interpretation 
of, how far followed by U. S. Su- 
preme Court. 213 

Separation of powers: Delesation 
of legislative power ; general discus- 
sion. ao3. 536. 
Arbitration treaties, general : consti- 
tutionality of. 69 
Delegation of legislative power to 
counties. 379 
Delegation of powers to municipal 
corporation: implied right to pro- 
vide civil liability. a88 
Determination of citizenship of Chi- 
naman: whether judicial or execu- 
tive functions. 60 

Powers of the ezecutlTe: Powers 
of state officers, see under States. 



Powers of Congress: Territories: 

Unwritten constitution : whether 
this limits power of Congress. 547 
Impairment of obligation of con- 
tract: Interpretation of constitu- 
tional provisions, see Federal Courts. 

Change of remedies. 133 

Charter provision as to internal man- 
agement of corporation: statute 
altering. 29S 

Due Process of Law : see also Tcuca- 
Hon. 

Administration of estate of living 
man. 535 

Constitutionality of statute giving 
commission discretion to grant and 
revoke liquor license without hear- 
ing. 607, 618 

Determination of Chinaman's citizen- 
ship by secretary of commerce. 60 

Discretion given commissioners to 
grant licenses. 607, 618 

Fla^ laws : whether taking property 
without due process. 53a 

Limitation of right of stockholders 
to elect directors. 62, 378 

Regulation of railway rates: neces- 
sity for court review. 487-^11 
Trial by jury: Jury trial: whether 
necessary for commitment of child 
to reformatory under Juvenile Court 
Acts. 374 
Vested rights: Bill of exceptions: 
statute passed during trial, chang- 
ing mode of settling. 465 

Parent's right to custody of child: 
whether vested property right. 374 

Rights acquired under overruled de- 
cision. 67 

Subsequently vesting contingent re- 
mainders : inheritance tax upon, zaz 

Suit against city for defective streets : 
statute making notice a condition. 

618 

What are : general discussion. zaz 
Enforcement of judgments: Con- 
stitutional protection of decrees for 
divorce. 5^^597 

Foreign corporations : right of, to sue 
on foreign judgment. 619 

Personal RL^ts: CiTil, Political 
and Religious: Elections: dis- 
crimination in form of ballot. 13 c 
Personal rights : civil, political, and 
religious : Freedom of contract : 
statute forbidding that employee 
shall belong to labor organization. 

3« 

Freedom to contract: statute requir- 
ing payment of wages in cash if de- 
manded. 62 

Epileptics: Statutory prohibition of 
marriage by. 298 



HARVARD LAW REVIEW. 



References in heavy>fiwed type are to Notk and Rbvikws; in plain type to Rbcbnt Casks; and in 
italicized t^pe to Articlbs. Criticisms of articles in other publications are also indicated in the arnraal 
periodical index which follows this index. 



Self-incrimination : statutory protec- 
tion against prosecution oy state, 
not by United States. 299 

Self-incrimination : whether privilege 
against extends to corporations. 

523 

Local self •government : Classi&a- 

tion of cities. 37S 

Delegation of legislative power for 

purposes of. aQ3 

Privileges and immunities: olass 

legislation : Classification of cities. 

378 
Executors : statute prohibiting appomt- 
ment of aliens as. 299 

Special Legislation : Special legisla- 
tion for cities : what constitutes. 

46s 

CONSTRUCnVE TRUSTS. 

See also Umitatiofi of Actions. 
Breach of fiduciary relation: Ces- 
tuCs right in property obtained by 
misuse of trust funds. ^^'^5^3 

Misconduct by non-fiduciaries : 
Bank and director as constructive 
trustees of deposits received after 
insolvency. 616 

Payment of certified check fraudu- 
lently obtained by bank with knowl- 
edge of fraud. Z43 

Right of injured party to follow mis- 
appropriated property or proceeds. 

Liability of Innocent Parties: 

Forged transfer of stock : liability 
of transferee. 141 

Liability as constructive trustee of 
misappropriated property or its 
proceeds. 5''~5^3 

Bffect of statute of frauds : Convey- 
ance inter vivos upon oral trust : 
whether enforceable by cestui after 
settlor's death. 466 

cohtxnqent httm a tndbrs. 

See Vested^ Contingent, and Future 
Interests. 

COIVTRACTS. 

See also Accord and Satisfaction; 

Advertisements; Agency ; Carriers; 

Conditions Precedent ; Consideration ; 

Constitutional Law ; Reformation of 

Instruments; Rescission; Usury. 
Contracts implied in law, see Quasi- 

Contracts. 
Contracts of affreightment : see Ship- 

Illegality as a defense, see Illegal 

Contracts. 
Liability for procuring breach of a 

contract, see Torts. 



What law governs, see nnder Conflict 

of Laws. 

Contracts implied in fact : Implied 

promise to use diligence in forward- 

mg^ to commission agent 133 

Continuance in employment after ex- 
piration of express contract. 100 
Construction of contracts : Implied 
promise to use diligence in forward- 
mg to commission agent. 133 

Unwritten renewal of previous con- 
tract. 299 

Implied promise to furnish reasonable 

amount of work. 214 

Defenses : non-perf oruanoe by 

plaintiff: Repudiation as waiver 

of valid defense. 63 

Wilful breach not going to essence of 
contract : recovery by servant guilty 
of. 460 

Defenses: impossibility: Impossi- 
bility bv foreseeable change in do- 
mestic law no excuse. 134 

Nature of defense: general discus- 
sion. 40s 
Remedies for breach of contract : 
Judgment on instalments already 
defaulted: whether a bar to re- 
covery for remainder. 619 
Suits by third persons not parties 
to the contract: Citizen suine 
on contract to supply city with 
water at fixed rate. 467 

CONVERSION. 
Equitable conversion, see EquitabU Cot^ 
version. 
See also Trover and Conversion. 

CONVXnrANCBS AND TRANS- 
FERS OF PROPERTT. 

See also Bankruptcy; ChatUl Mort- 
gages; Deeds ; Sales, 

COPTRiaHTS. 

Agreement in restraint of trade bv 
copyright-holders: whether illegal. 

"5 

Infringement: of musical composition 
by perforated roll. 134 

Infringement : rights of assignee of com- 
mon law copyright. 380 

Infringement : statutory rights where 
no notice on originad. 380 

Musical idea : whether subject to copy- 
right. 134 

CORPORATIONS. 

Privilege against self-incrimination, 
see Constitutional Law. 

See also Interstate Commerce; Muni- 
cipal Corporations ; Taxation. 
Nature of corporations : Personality 
of corporation. aaa 



TABLE OF CONTENTS. 



XI 



Refwcneet m hea^-laced type are to Nom end Rivisws; in plain type to Rbcsmt Cash; and la 
italidxed type to Articlbs. Cnoaams of artidee in other pablicationB are alao indicated in the annoal 
periodical index which follows thia index. 



Philosophical and historical discus- 
sion. 3S<^3^5 
DUtinotion between oorporatlon 
and its memben : Personality of 
a corporation. laa 
Charters : grant, oonstmotion and 
amendment. 

See also ConstiiutiotuU Law, 

Exclusive rights : whether granted by 
implication. 580 

Corporations de facto* Liability of 
corporators when de facto organiza- 
tion not consummated: general 
discussion. 389 

— whether liable as partners. 389 

Explanation of doctrine. aaa 

Promoters: Nature of liability of 
corporations on contracts by pro- 
moters. 97'''os 
Corporate powers and their exer- 
cise: Mortgage of franchise in 
nature of easement by water com- 
pany. 214 
Directors and other ofBoers : Crim- 
inal liability under N. Y. statute for 
campaign contributions. 6zx 

NeeUsence : degree of care required 
of (Srectors. 6x3 

Right of majority stockholders to 
compel them to act. 6ao 

Stockholders: rights incident to 
membership. 

See also Bankruptcy [Discharge), 

Right to elect (urectors : limitation 
of. 6a, 378 

Stockholders: powers of major- 
ity: right to compel directors to 
act 6ao 

Stockholders: individual UabiUty 
to oorporatlon and creditors: 

See also Bills of Peace. 

Dividends paid out of capital : protec- 
tion from liability m equity by 
statute of limitations. 536 

Payment of shares with property: 
whether good faith properly tne 
only test ' 366 

Payment of shares with property : 
general discussion. 366 

Statute dianging remedy of creditors: 
whether unconstitutional. 133 

Statutory liability: foreign enforce- 
ment after remedy changed. 617 

Unlimited liability outside state of 
charter. 380 

Ultra vires: basis of doctrine : £i- 
fect of theory that there is partner j 
ship where de facto organization not | 
consummated. 389 

General discussion. saa j 

Ultra vires contracts : rights and I 

liabilities of parties : Ultra vires I 

contracts in federal courts : general j 

discussion. 608 ' 



Torts and crimes : Overissue of 
stock by agent: corporation's liar 
bility therefor. m 

Insolvencv of Corporation : Re- 
ceiverships, see Recen/ers, 
Dissolution: Devolution of property 
on dissolution : personalty. 6zo 

Riffhts of bankrupt stockholder in 
distributions of assets, see Bank' 
mptcy {Discharge), 
Foreign Corporations: Conditions 
upon right to do business : validity 
of contracts made before compliance 
with. 619 

Conditions upon right to do business : 
whether compliance creates a new 
corporation. 134 

Denial of account in controversy con- 
cerning internal management of 
corporation. i^ 

Exclusion of foreign corporation by 
state: general discussion of state's 
power. 191 

Foreign judgments: right to sue on 
when no compliance with sututory 
requirements. 137 

License tax upon intra-state business. 

380 

Service of process on corporations 

which have ceased to do business 

in state. 5a 

Service of process on foreign corporar 

tions : general discussion. 5a 

CORROBORATION. 

Necessity for, of confessions, see Evi- 
dence. 

COVBNANT8 OF TITZifi. 
Covenant of warranty : Estoppel by 
quitclaim deed with special war- 
ranty. 38a 
COVENANTS RUNNING WITH 
THE LAND. 
See Restrictions and Restrictive Agree- 
ments as to the Use of Property. 

coxmTS. 

See also False Imprisonment; Federal 
Courts ; Law and Fact. 
Realty, attached by one court : whether 
in its possession so as to bar inter- 
ference by another. 210, 377 
Dissenting opinions : advisability of. 309 
Naturalization : whether state may va- 
cate its decree of, on account of 
fraud. a97 

COVERTURB. 

Sec Husband and Wife. 

CREDITORS. 

Right to attach goods to which bill of 
lading outstanding, see Attachment. 

Rights of, see Corporations {Stockhold- 
ers); Partnership. 
See also Composition with Creditors. 



XI 1 



HARVARD LAW REVIEW, 



References in heayy-faced type are lo Notbs and Rbvibws; in plain type to Rbcbnt Casks; and in 
lUlicized type to Articlks. Criticisms of articles in other publicaUons are also indicated in the annoal 
periodical index which iollows this index. 



CRIMINAL LAW. 

Particular Crimes, see Larceny, 
See also New Trial. 
Sentence : unauthorized fixing of maxi- 
mum term of imprisonment. 468 



Former jeopardy: Conviction of 
higher offense on second trial. 300 
CT-PRil8 DOCnUNB. 

See under Charities and Trusts for 
Charitable Uses; Rule against Per- 
petuities. 



D 



DAMAOBS. 

In admiralty, see Admiralty. 
See also Carriers ; Death by Wrongful 
Act ; Libel and Slander \ Nuisance ; 
Telegraph and Telephone Companies. 

Nature and Elements: Nature of 
obligation to pay damages : whether 
consentuaL ^31 

Measure of damages : Contractual 
actions: measure of damages in, 
general discussion. 531 

Consequential damages : Conse- 
quential damage from breach of 
contract under special circum- 
stances. 53X 

DANGEROUS PREMISES. 

See also Landlord and Tenant, 
DEATH BY WUCNaFXTL ACT. 
Statutory liability in general : Non- 
resident aliens : rights of. 215 
Defenses to statutory liability : 
IJinitation of action: time when 
action accrues. 458 
Damages in statutory action : Loss 
of parental care. 381 
DEBENTURES. 
See Mortgages. 
DEBT. 

Discharge of, see under Bankruptcy; 
ReUcue. 

DECEIT. 

Liability of principal for agent's de- 
ceit, see under Aeetuy. 
Particular cases : Note forged by de- 
fendant, converted and circulated 
by third party through defendant's 
negligence. 468 

DEDICATION. 
Nature and scope : Presumed dedi- 
cation : whether applicable to jus 
spatiandi or generally beyond high- 
ways, parks, and squares. 55 
DEEDS. 

Parties : Partnership named as grantee : 
in whom title vests. 219 

Delivery acknowledgment and ac- 
ceptance : Acceptance : whether 
necessary. 612 

Delivery to third person to be deliv- 
ered on grantor's death. 621 



Construction and operation in gen- 
eral: Estoppel of grantor con- 
veying before acquiring title, see 
Estoppel. 
Exceptions and reservations: Res- 
ervation of easements : operation as 
restrictive agreement. 469 

DEFAMATION. 

Sec Libel and Slander. 

DELEaATION OF POWER. 

See Constitutional Law (Separation of 
Powers). 

DEPOSITARIES. 

Deposits incident to banking, see Banks 
and Banking. 

DEPOSITS. 

See under Banks and Banking. 

DESCENT AND DISTRIBUTION. 

See also Taxation. 
Dissolution of corporation : devolution 
of personalty. 6zo 

DIRECTORS. 

Of Banks, see under Banks and Banking. 
See also under Corporations, 

DISSEISIN. 

As essential toejectment,see Ejectment. 

See also under Adverse Possession, 
General nature and effects of dis- 
seisin : Conveyance of lands by 
disseisee. 267-28^ 

Tortious remainder — disseisor claim- 
ing under void devise. 59 

DISSENTINa OPINIONS. 

Advisability of printing dissenting opin- 
ions. 309 

DISSOLUTION. 

Of Corporations, see under Corporations, 

DISTRAINT. 

See Landlord and Tenant (Rent). 

DISTRIBUTION. 

.See Descent and Distribution. 

DIVERSE CITIZENSHIP. 

As ground for federal jurisdiction, see 
Federal Courts. 

DIVIDENDS. 

See Corporations. 



TABLE OF COXTEiVTS. 



Xlll 



References in heavy-faced type are to Notks and Rkvibw; in plain type to Rbcknt Casbs; and in itali- 
cized type to Articlbs. Criticisms uf articles in other publications are indicated also iu the annual 
periodical index which follows this index. 



DIVORCB. 
Jurisdiotion : see also Confiict of Laws ; 
DomiciU. 
Whether party invoking inrisdiction 
can sabseqaently attack divorce. 622 
ProoeedinfSB and relief: see Judg- 
ments, 
Alimony : Payment after death of hus- 
band 215 
Operation and efiiBCt of divoroe: 
Divorce secured from prior husband 
after re-marriage. 471 
Implied revocation of will by divorce. 

69 
DOCUMBNTS. 

As evidence, see under Evidence, 
Construction of, see Releases. 
DOGS. 

See Animais. 



DOMICILB. 

Kmancipated infant: whether he may 
acquire new domicile. 215 

Government official at Washington, 
seeking divorce in former home. 135 

Husband and wife : possibility of sepa- 
rate domicile for wife suing for 
alienation of affections. 381 

Requisites for : general discussion. 1 35 
DOWUR. 

Ante-betrothal conveyance unrecorded : 
effect upon wife's rights. 459 

Whether barred by void divorce pro- 
cured by wife. 622 

DUB PROC£88 OF LAW. 

See under Constitutional Law. 

DTING DECLARATIONS. 

See under Evidence, 



XLA8BMEZIT8. 

See Constitutional Law ( Vested rights); 
Dedication ; Eminent Domain; Equi- 
taide Easements; Highways; Right to 
Support, 
Nature and olaues of easementa : 
Easements of necessity; surface 
owners* rights against grantee of 
granite. 220 

Display advertisements; sealed con- 
tract for, as giving rise to easement. 

526 
Riparian owners' right as easement. 

293 
Modea of aoqoiaition: implied 
grant and reaervation: Reser- 
vation of easement in deed poll : 
operation as restrictive agreement. 

469 

BJRCTMENT. 

Disseisin requisite to maintain action : 
whether encroachment above or be- 
low surface sufficient. 369 

ELECTIONS. 

Discrimination in form of ballot. 135 
ELECTION OF REMEDIES. 

For payment of revoked check, see Banks 
and Banking. 
ELEVATORS. 

Sec under Carriers, 

BBCANCIPATION. 

See Infants, 

EMINENT DOMAIN. 
For what purpoaea property may 
be taken: Land taken for irriga- 
tion ditch for private use. 62 
Right of way for private mining 
purposes. 535 



When ia property taken : Building 
of revetment causing erosion. 63 

Easements as property not to be taken 
without due process. 127 

General discussion : legislative author- 
ization of nuisances. 127 

EQTTITABLE CONVERSION. 

See also Taxation, 
Its effect on validity of trust performable 
outside of jurisdiction of its creation. 

457 
Effect of decision in Ackroyd v. Smith- 
son ; general discussion. i-2g 
What property ceases to be assets for 
debts, by equitable conversion. 

Bilateral contract to buy and sell land 
as effecting equitable conversion 
coextensive with actual conversion 
directed. 8i-8k 

Distinction between direction to sell 
land, with gift of proceeds, and lien 
or charge on land. ^5-9' 

Effect of direction to re-invest proceeds 
of sale of land in other land. 91-^ 

Indirect conversion through bilateral 
contract for purchase and sale of 
land. 2jj-24r 

— through unilateral covenant to pur- 

chase or sell land. 242^24^ 

— through trust or duty to purchase or 

sell land. 24^-24^ 

Duration of indirect conversion of land 

into money or of money into land : 

general discussion. 3^ ^'334 

EQUITABLE EASEMENTS. 

Contract for display advertisement as 
giving rise to. 526 



xtv 



HARVARD LAW REVIEW, 



References in heavjf^aoed type ate to Notbs and Rsvibws ; in plain type to Rccknt Casbs; and in itali- 
cized type to Articub. Critidamt of articles in other publications are indicated also in the annual 
periodical index which follows this indeic 



Right of lot-owner in private cemetery 
under parol agreement as equitable 
easement ao5 

EQUITABZiB LXBN. 

See Liens. 

EQUITY. 

See also Bills of Peace ; EquitahU CotP- 
version ; Injunctions ; Receivers ; Ref- 
ormation of Instruments ; Rescission ; 
Restrictions and Restrictive Agree- 
ments as to Use of Property ; Specific 
Performance; Trade Marks and 
Trade Names, 
Juxiidiotion : Discretion to refuse to 
aid buyer seeking monopoly. 543 

Injunction where plaintiff's risht or 
defendant's wrong is doubtful. 331 

Restraint of police. 582 

ESTATES FOR UFB. 

See Life Estates, 

ESTOPPEL. 

See also Trusts, 

Whether sovereign may be estopped in 

pais, by record or by deed : general 

discussion. ia6 

Estoppel in palB: Different but not 

inconsistent statement of position. 



ana 



££fect of part action in reliance ani 
part not in reliance on representa- 
tion. JJJ-118 

Estoppel as to part of a transaction. 

6x4 

Extension of doctrine; party procur- 
ing void divorce barred, from deny- 
ing validitjr. 622 

Landlord's title; estoppel of tenant 
already in possession to deny. 375 

Usurious contract; estoppel as basis 
for recovery on. 454 

Void contracts ; whether they can be 
made enforceable by estoppel. 

454» 627 

Estoppel by deed : Estoppel apinst 

remainderman by tenant claiming 

under void devise. 59 

Quit-claim deed: title by estoppel 
under. 582 

EVICTION. 

See Landlord and Tenant. 



EVIDENCE. 

See also Burden of Proof; Constitu- 
tional Law; Presumptions; IVit- 



Heanuiy : in general : Witness' state- 
ment as to his own age. 302 
ConfessionB : Corroboration : neces- 
sity for. 469 
Dying deolaratiomi : subject-matter 
of declaration. 469 
Deolaratione in oonrse of duty: 
Oral statement of deceased physi- 
cian to patient. 301 
Similar faota and oocurrenoee: 
Custom as evidence of usage. 622 
Dooaments: Carbon copies as dupli- 
cate originals. 123 
Duplicate originals ; what are : general 
discussion. 123 
Recital in ancient deed not admissible 
to prove relationship. 136 
EXCEPTIONS, BILL OF. 

Whether vested right. 465 

EXECUTORS .AND ADBONIS- 
TRATOR8. 
See also Conflict of Laws (Intestate 
Succession) ; Constitutional Law 
{Privileges and Immunities), 
Rights, powers, and duties : Power 
to sell is not power to mortgage. 64 
Ri^ht of retainer : exercise of against 
judgment creditor. 136 

Retainer : whether administrator, trus- 
tee, under duty to exercise it. 038 
AdminlBtration : Of estate of living 

man, see Constitutional Law. 
Proceedings by or against: Execu- 
tor where legatee under disability 
not trustee for purposes of statute of 
limitations. 383 

Administration bond : Surety's right 
to purchase property of estate. 537 
EXECUTORT DEVISES. 

See Vested^ Contingent, and Future In- 
terests. 
EXEMPTIONS. 

From liability for agent's negligence, see 
Charities and Trusts for Charitable 
Uses. 
See also under Bankruptcy ; Taxation. 
EXPRESS COMPANIES. 

Duty of carriers as to, see Carriers (Con^ 
trot and Regulation), 



FALSE IMPRISONMENT. 

Liability of judicial officers acting with- 
out jurisdiction. 216 
FEDERAL COURTS. 
See also Bankruptcy, 



Jorisdiotion based on diversity of 

oitiaenship : Effect of joining citi- 
zen of plaintiff*s state as defendant. 

470 
Authority of state law: State in- 



TABLE OF CONTENTS. 



XV 



ReferencM in heavy-faced type are to Noras and Rbvibws ; in plain type to Rbcknt Casss ; and in itali- 
died type to Articlxs. Critidsms of artidet in other publications are also indicated in the annual 
periodiGal index which follows this index. 



terpretation of state constitution: 
authority of in U. S. Supreme 
Court. 213 

Relation of state and federal ootirta. 
.See also Removal of Causes. 
Receiver appointed by state court tak- 
ing possession of realty attached in 
federal court. 210, 377 

FBLLOW SERVANTS. 

See under Master and servant, 
FLAG LAWS. 

See Constitutional Law : Police Power. 

FORBION CORPORATIONS. 

See under Conflict of Laws; Corpo- 
rations. 
FOROBRT. 
Of transfer of stock, see Constructive 

Trusts; Transfer of Stock. 
Foreed instrument converted and circu- 
lated by third party through forger's 
negligence, see Deceit, 



FORMER JEOPARDT. 

See under Criminal law. 

FRANCHISES. 

Mortgage of franchise in nature of ease- 
ment by water company. 214 

Taxation of foreign corporation which 
has become domestic corporation. 

FRAtTD. 

As ground for vacating decree of natu- 
ralization, see Aliens. 

Giving rise to constructive trusts, see 
Constructive 7 rusts. 

FRAITDS, STATUTE OF. 

See SUitute of Frauds, 

FRAUDULENT CONVETANCB8. 

Voluntary translerti : Ante-nuptial 
secret conveyances: convevance be- 
fore betrothal recorded alter mar- 
riage. 459 



G 



(GARNISHMENT. 

Garnishment of debt without service 
on creditor. 132 

Effoot of gamiahment : See Res 
Judicata, 
GOOD WILL. 
Good will of corporation: where tax- 
able. 67 



Good will as property ; whether merely 
an attribute of land. 530 

GOVERNOR. 

Powers and duties, see StcUes, 

GUARANTY. 
Of negotiable instruments, see BUU and 
Notes, 



H 



HABEAS CORPUS. 

Unauthorized sentence attacked by ha^ 
beets corpus proceeding. 468 

HEARSAT EVIDENCE. 

See under Evidence. 

HIGHWATS. 

See also Dedication; Municipal Cor- 
porations, 
Rlghta and remediea of abuttexa: 
Right to shade trees. 64 

HISTORT OF LAW. 

Procedure and oonrta: Province of 
court and jury : mixed questions of 
law and fact. 477 

HUSBAND AND WIFE. 

See also Divorce; Domicile; Mar- 
riaf^e ; Witnesses, 
Matnal righta, dutiea, and liabUi- 



tiea : Ante-nuptial frauds on mari- 
tal rights of future spouse : convey- 
ance oef ore betrothal recorded after 
marriage. 459 

Righta of wife against hnaband and 
in his property : See also Dower, 
Wife's ri^ht to support when unable 
to obtain divorce on account of her 
own misconduct. 621 

Righta and liabHitiea of huaand aa 

to third partiea : See Bankruptcy 

[Discharge), 

Maintenance of insane wife in public 

asylum : liability for. 217 

Contraota between hnaband and 
iMTlfe: Separation agreements: va- 
lidity. 621 

Wife'a separate estate : Restraint on 
alienation and devise to separate 
use of married woman. 475 



XVI 



HARVARD LAW REVIEW, 



References in beavy-faoed type are to Nons and Rbvxbws ; in pbin type to Rbcbnt Casbs ; and in itali- 
cized type to Articles. Criticiams of articles in other publications are also indicated in tbe annual 
periodical index which follows this index. 

I 

ILLBOAL CONTRACTS. 

Restraint of trade, see Restraint of 

Trade, 
Usurious contracts, see Usury. 
Contracts against public policy: 
Agreements between office-holders 
as to terms of office. 302 

Contracts to employ only union 
labor. 368 

IMPLIED CONTRACTS. 

See Quasi-contracts; Contracts. 

INCORPORATION BY RSFBR^ 
ENCB. 

See under Wills. 
INDBPBNDBNT CONTRACTOR. 

Liability of principal for torts of see 

Agency. 

INFANTS. 

See also Domicile. 

Emancipation of infant by marrying 
and establishing separate home. 21c 
Infant legatee : whether in position of 
cestui que trust. 383 

Custody, property, and niainte- 
nanco : Persons entitled to custody 
of infants : constitutionality of Juve- 
nile Court Acts: general discus- 
sion. 374 
Unborn children. Child en ventre sa 
mere : when considered bom. 624 
Ri^hU of posthumous children under ! 
civil damage laws. 64 

INFRINGEMENT. 

Of copyright, see Copyright. 
Of patents, see Patents. 
INHERITANCE TAX. 

See Taxation, 
INJUNCTIONS. 

See also Nuisance ; Specific Perform- 
ance {Negative Contracts). 
Nature and scope of remedy : In- 
junction where plaintiff's right or de- 
fendant's wron^ is doubtful. ^01 
Illegal undertakmg indirectly aided 
no bar. 65 

Discretion to refuse injunction ot 
police on grounds of policy. 382 
Acts restrained: Disclosure of trade 
secrets: competitor enjoined from 
employing workman. 5^7 

Market quotations : unauthorized dis- 
tribution of. 65 
INNKEEPERS. 
Boarding houses : Duty of care owed 
guest. 534 
INSANE PERSONS. 

See also Husband and Wife. 



INSOLVENCY. 

Banks, see Banks and Banking. 
Insolvent corporations, see Receivers. 
See also Bankruptcy ; Preferences. 

INSURANCE. 

Federal control of insurance, see Inter- 
state Commerce. 

What law governs insurance contract, 
see Confict of Laws. 

See also Bankiruptcv. 
Cosunencement, duration and ter- 
mination of liability: Loss oc- 
curring after period of risk but 
becoming inevitable within it. 217 
Construction and operation of con- 
ditions : Pro rata clause : effect of 
other insurance: individual insur- 
ance by partner. 624 
Construction of particular words 
and phrases in standard forms : 
Incontestability clause, makins 
policy incontestable from date ot 
issue. 470 

INTERNATIONAL LAW. 

Nature of, see Jurisprudence. 

Change of sovereignty. Existing 

laws : effect of ce.Hsion thereon. 131 

Existing laws in Porto Rico : effect of 

annexation thereon. 624 

Treaties: Constitutionality of general 

arbitration treaties 69 

INTERSTATE COMMERCE. 
Control by Congress: Historical 
argument against power of Con- 
cress to regulate corporations doing 
mterstate business. 16&-199 

Railroad rate regulation : necessity for 
court review. 4S7S10 

Control by states: Police power of 
states under Wilson Act. 53 

See also Carriers; Restraint of 
Trade. 
'What constitutes interstate com- 
merce: Requirement by city that 
its supplies be produced within state 
not interference with interstate com- 
merce. 70 
Whether congress may determine what 
is interstate commerce. 142 
Insurance as interstate commerce: 
Federal supervision. 142 

INTOXICATINO LIQUORS. 

See also Statutes ; Taxation. 
Constitutionality of statute giving com- 
mission discretion to grant and 
revoke licenses without hearing. 
607, 618 
Posthumous child's action for damage: 



TABLE OF CONTENTS, 



xvii 



References in heavy-faced type are to Notes and Rsvikws ; in plain type to Rbcxnt Casks ; and in itali- 
cised type to AmTiCLBs. Criticisins of articles in other publicatiooB are also indicated in the annual 
periodical index which follows this index. 



to means of support by unlawful 

sale of liquor. 64 

Wilson Act : State police power under. 

53 



nUUOATION. 

See Eminent Domain; 
Water-cowrses. 



Waters and 



J 



JBOPARDT. 

See under Criminal Law, 

JOINT OBLIGORS. 
In general. See also Res Judicata. 
Statute of limitations: tolling of, by 
payment by one of several joint 
obligors. 57 

Joint debtors : Composidon with cred- 
itors : promise of^ part payment by 
one joint debtor as release of other. 

Joint ii7rongdoere : Division of dam- 
ages between in admiralty. 1 29 

JUDOBS. 

Dissenting opinions : advisability of. 

309 
False imprisonment: Civil liability 
for, by judge acting without jurisdic- 
tion. 216 

JUDOMBNTS. 

Setting aside and Tacating Judg- 
ments : Naturalization : whether 
state court may vacate decree of on 
account of fraud. 297 

Divorce: Vacation of judgment of 
after death of a party. 384 

Collateral attack: Collateral attack 
on domestic probate decree for want 
of jurisdiction. 384 

Operation as bar to other actions : 
Judgment on installments of con- 
tract already defaulted whether a 
bar to recovery for remainder. 619 



Foreign Judgments: Constitutional 
protection of divorce decrees. 

Foreign corporations : Right of to sue 
on forei^ judgment. 137 

Dormant judgments: Enforcement of 
in sister state. 137 

Assignment of judgments. See also 
Res Judicata, 

Assignee's right to sue for breach 
of officer's duty occurring before 
assignment. 218 

JURISDICTION. 

Of federal courts, see Federal Courts, 
Presumption of, see Presumptions. 
For taxation, see Taxation. 
See also Conflict of Laws. 
jmUSFRUDBNCB. 

International law as part of the munic- 
ipal law. 478 
Nature of law: relation of custom to 
law. 308 
JURY. 

Right to trial by jury, see under Con- 
stitutional Law. 
See also Law and Fact ; New Trial. 
Efficiency of the jury system : advisa- 
bility of its extension to the Philip- 
pines. 224 
Misconduct by jurors as ground for new 
trial. 467 
J UVB U l li B COURT ACTS. 

Constitutionality of: general discus- 
sion. 374 



LABOR X7NI0NS. 

See Trade Unions. 

LANDLORD AND TBNANT. 

See also Nuisance. 
Nature and Incidents of the rela- 
tion : Contract for display advertise- 
ment as creating relation. 526 

Estoppel of tenant already in posses- 
sion to deny title of landlora : gen- 
eral discussion of basis for. 375 

Constructive eviction: act done by 
landlord as owner of adjoining 
premises. 50 

Constructive eviction : what acts are : 
general discussion. 50 



Repair and use of premises : Land- 
lord's liability for injury from prem- 
ises in absence of covenant to 
repairs. 385 

Stranger's right against landlord under 
contract to repair. 384 

Rent: Distraint of crown property. 

218 

LARCBNT. 

Intent: Corporation director's cam- 
paign contribution : what essential 
to snow specific intent under N. Y. 
larceny statute. 6x1, 620 

Consent: Agent's power to transfer 
title : condition of consent violated. 

»38 



xvni 



HARVARD LA IV REVIEW. 



References in heavy-faced type are to Notbs and Rbvisws ; in plain type to Rscxnt Casbs ; and in italL 
cixed type to Articles. Criticisms of articles in other publications are also indicated in the annual 
periodical index which follows this index. 



LAW. 

Nature of, see Jurisprudence, 
LAW AND FACT. 

Provinces of oonrt and Jury : Mixed 
questions of law and fact. 477 

LAW SCHOOL. 

Notes on Harvard Law School. 50, ixg 
LEASES. 

See Landlord and Tenant, 

LEGACIES AND DEVISES. 

See also Alienation^ Restraints on; 
Charities and Trusts for Charitable 
uses ; Equitable Conversion ; Life Es- 
tates ; Powers ; Pule against Perpetu- 
ities; Trusts: Wills. 
Lapsed bequests and devises : Ap- 
plication of statute preventing lapse. 



Void or voidable bequests and 
vises : See Adverse Possession, 



u 



LEGISLATION. 

Relation between legislation and pub- 
lic opinion in England during nine- 
teenth century. i^i-idy 

LEQISLATUBE. 

Power of, see Constitutional Law, 

LIBEL AND SLANDER. 
Acts and words actionable : Laud- 
atory words : nature of action for. 

527 
Publication charging party treason 
whether libellous per se, 620 

Privileged communications : In- 
tended witness : statements of to at- 
torney and client. 219 
Damages: Sickness following mental 
suffering as element of damage. 

LICENSES. 

See also Police Power, 
Display advertisement : contracts for as 
creating license. 526 



Revocation of parol license to upper ri- 
parian owner to divert water. 293 
Theatre tickets: whether right given is 
mere license. 307 

LIENS. 

See also Attorneys, 
Equitable lien for purchase price of 
personalty. 472 

Equitable liens on after-acquired prop- 
erty. SST-jis 
Bill of lading to buyer : seller's lien by 
retention. ^ 388 
Lien-holder's right to bring action of 
waste at law. ^89 
Priorities : recorded mortgage ante-dat- 
ing lien. 617 
LIFE ESTATES. 
In chattels personal : residuary bequest 
for life. 219 
Right of life tenant in private cemetery. 

205 
LIMITATIONS OF ACTIONS. 
See also Executors and Administrators. 
Nature and oonstruotion of stat- 
ute : Equity : application of anal- 
ogy of statute of limitations against 
constructive trustees. 536 

Lex loci or lex fori as governing en- 
forcement of dormant judgment in 
sister state. 137 

Aoorual of action : Death by wrong- 
ful act: time of accrual en action 
under clauses of limitation. 458 
New promise and part payment : 
Effect of, when made by one of sev- 
eral joint obligors. 57 
Effect of payment by life tenant: as 
afiainst remaindermen. 57 
— devises of other lands. 57 
LOCAL SELF-GOVERNMENT. 
See under Constitutional Law ; Munici' 
pal Corporations, 

LORD CAMPBELL'S ACT. 

See Death by Wrongful Act, 



M 



MALICIOUS PROSECX7TION. 
Basis and requisites of action : 
Jurisdiction of court in which mali- 
cious prosecution is instituted. 539 

BffARRIAGE. 

Of infants, see Infants. 

See also Constitutional Law {^Personal 

Rights); Divorce, 
Validity: Divorce secured from prior 

husband after remarriage, effect. 

471 

Alimony : AVimony pendente lite denied 

to one seeking nullificatiun. 385 



MARRIED WOMEN. 

See husband and Wife, 

MASTER AND SERVANT. 

Construction of contract between, see 

Contracts, 
State regulation of the relation, see 

Constitutional Law (Freedom of 

Contract), 
Liability of master to third persons, 

see Agency, 
See also Admiralty, 

Fellow-servant and vice-principal 



TABLE OF CONTENTS, 



XIX 



References in \heav7- faced type are to Notbs and Rbvibws; in plain type to Rkbnt Caib*;; and in itali- 
ctxed type to Akticubs. Criticisms of articles in other publications are also indicated in the annual 
periodical index which follows this index. 



dootrinea: Paupers compelled to 
labor : whether within doctrine. 540 
Assumption of risk: Criminal stat- 
ute: effect of upon doctrine. 139 

MINES AND MINERALS. 
See also Eminent Dotnain. 
Right of support : interference with sup- 
port by quarrying. 220 
— waiver of right to support from sub- 
jacent estate. 626 

BfflSTAXB. 

Mutual mistake of fact as ground for 
rescission and reformation. ago 

MONB7. 

Rights of owner of stolen money : gen- 
eral discussion. 55 
MONOPOUBS. 

See Restraint of Trade. 

MORTGAGES. 

Tolling of Statute of Limitations, see 
Limitation of Actions. 
See also Executors and Adminitiraiors ; 
Franchises ; Recording and Registry 
Laws ; Trespass to Realty. 

Merger of interests: Transfer of de- 
bentures after payment. 303 



MOTIVE. 

See Actions. 

MUJXICIPAL CORPORATIONS. 

Governmental powers and func- 
tions : Right to pass ordinances 
giving rise to civil liability, upon 
violation. 288 

Municipal debts and contracts: 
Patented articles: requirement of 
use as violation of statute calling 
for competitive bidding. 138 

Liability for torts : Defective school- 
house. 65 
Notice required as condition to suing 
city : whether unconstitutional. 618 
Trespass of animals employed in fire 
department: liability for. 386 

liSgislative control : Classification of 
cities as means of avoiding special 
leg[islation. ^79 

Special legislation within constitu- 
tional prohibition : what consti- 
tutes. 46 J 

Actions by and against municipal 
corporations : Tort action agamst 
negligent contractor who has given 
bond. 138 



N 



NABflSS. 

Personal names : nature of and limita- 
tions on use : general discussion. 

548 

NATURALIZATION. 

See Aliens. 

NEGOTIABLE INSTRUMENTS. 

^te Bills and NoUs. 

KEW TRIAL. 

Ghrounds for granting new trial: 

Juror's notes of evidence. 303 

Misconduct of jurors: reading of 

newspaper. 467 

NEGLIGENCE. 

Of agent, see Agency; Master and 
Servant. 

Of bailee, see Innkeepers. 

Of charitable organizations, see Char- 
ities and Trusts for Charitable Uses. 

Of directors, see Directors. 

Of municipal corporations, see Mu- 
nicipal Corporations. 

Of telegrapn and telephone com- 
panies, see Telegraph and Tele^ 
jphone Companies. 

Liability of maker or vendor of a 
chattel to a third person, see under 
Torts. 

See also Torts. 



Duty of oare : Of railroads, see under 

Railroads. 
Dutv created bv municipal ordinance : 

whether neglect of is negligence 

per se. a88 

Defenses: Assumed risk: effect of 

criminal statute upon doctrine. 139 

NEGLIGENT MISREPRESENTA- 
TION. 

See Libel and Slander, 

NOTICE. 

By record, see Recording atul Registry 

Laws. 
To third party of revocation of agent's 

authority, see Agency, 

NUISANCE. 

What constitutes a nuisance : Pro- 
jection of parts of building above 
adjoining land. 369 

Printing machinery in district devoted 
to printing trade. 474 

Recovery of damages : Reversioner, 
right of. 541 

Private action for public nui- 
sance: Special damage: necessity 
of showing. 5.^1 

NUISANCES. 

Legislative authorization of nuisances, 
see Eminent Domain. 



XX 



HARVARD LAW REVIEW. 



References io heavy-faced type are to Notbs and Rbvisws : in plain type to Rbcbnt Cask ; and in itali- 
cixed type to Akticlbs. Critictsms of articles in other publications are also indicated in the annual 
{)eriodical index which follows this index- 



OFFER AND ACCBFTANCB. 

Sec PuHic Officers, 
OFFICERS. 

See Public Offiart. 



o 



OWITBRSHIP. 

See TUU^ Owmerskip and PossisHon, 



PARENT AND CHIZaD. 

See also Bankruptcy ; Infants. 
Parent's right to custody: constitu- 
tionality of Juvenile Court Acts: 
general discussion. 374 

PARTNERSHIP. 

Bankruptcy of partnership, see under 

Bankruptcy, 
See also Receivers, 
Nature of partnership : Corporators : 
whether liable as partners when de 
facta organization not consummated. 

38g 
Nature of partner's interest as effect- 
ing provision as against double in- 
surance. 624 
Single transaction : possibility of part- 
nership for. 387 
Partnership property: See also Tax- 
ation. Conveyance to firm in firm 
name : in whom title vests. 219 
Rights, duties, and UabiUties of 
partners inter se: Ec^uitable 
mortgage by survivor: right of 
deceased partner's representative. 

541 
Ric;hts and remedies of creditors : 

Assumption of debts by continuing 
partner: suit against partners jointly. 

'39 

PASSENGERS. 

See Carriers. 

PATENTS. 

Jurisdictions in action for infringement 
of foreigu patents, see Conflict of 
Laws. 

To public lands, see Public Lands. 

See also Municipal Corporations. 

Agreements in restramt of trade by 
patentees : whether illegal. 125 

Assignment : agreement to assign fu- 
ture improvements. M^ 

What are patentable processes : whether 
test, chemical or mechanical: gen> 
eral discussion. 30~49 

PATTPERB. 

See Master atid Servant. 

PERPETUITIES, RULE AGAINST. 

See Rule against Perpetuities. 



PERSONS. 

See Husband and Wife; Infants; 
Parent and Child. 

PERSONAL PROPERTT. 

Life estates in, see Life Estates. 
See also Equitable Conversion ; Taxa- 
tion. 

PHYSICIANS AND SX7RGEONS. 

Oral statement of deceased physician to 
patient as declaration in course of 
duty. 301 

Necessity of patient's consent to opera- 
tion. 220 

PLEDGES. 

After-acquired property : effect of pledge 

<>^- 557-5^5 

Duty of pledgee to sell on request by 

pledgor. 471 

Transactions construed as pledges: 

stocks carried on margin. 529 

POLICE POWER. 

See also Interstate Commerce. 
Nature and extent: Regulation of 
prices : whether confined to public 
service companies. 225 

Epileptics : prohibition of marriage of. 

298 

Police power and public taste: flag 
laws. 53a 

Removal of child from custody of 
parent, whether justified under 
police power. 374 

State police power under Wilson Act. 

53 
Regulation of business and occu- 
pation : Statute requiring payment 
of wages in cash if demanded. 62 
Wilson Act : State police power under. 

53 
Regulation of property and use 
thereof : Destruction and sale of 
illegally used property without ju- 
dicial process. 025 
Flag laws. 53a 
Public service agencies: Public 
places of amusement: statute re- 
quiring general admission to. 472 

POSSESSION. 

See TitlCy Ownership and Possession. 



TABLE OF CONTENTS. 



XXI 



R. fcrcncer in heavy-faced type are to Notbs and Rsvikws : to pbin type to Racnrr Cask ; end in itali- 
cized type to Articlbs. Critidsmi of articles in other publications are also indicated in the annual 
[>unodical index which follows this index. 



PO'W^SR OP ATTORNST. 

'* Power coupled with an interest " : 
what constitutes. 287 

POWBR8. 

Power coupled with an interest, see 
Power of Attorney. 

Appointment to remainderman : effect 
of. 139 

Power of mortgage : effect of mortgage 
by executor with power of sale. 04 

Residuary devise as execution of power: 
whether distinction between general 
and special powers. 304 

Will executing power: sufficiency de- 
termined by what law. xaa 

PREFERENCBS. 

Under Bankruptcy Laws, see under 
Bankruptcy. 
Atoommon law: State priority, effect 
of appointment of receiver on. aga 

State's right to priority: general dis- 
cussion. 292 

PRBSCRIPTION. 

Public acquisition of prescriptive rights. 

PRBSUMPTIONS. ^^ 

See also Burden of Proof, 
BadBtenco and enact of preaump- 
tionaln partioular oaaaa: Pre- 
sumption of jurisdiction in courts : 
rebuttability of. 216 

Cases involving foreign law. 401-417 
Presumption ot dedication. 55 

Illicit relations : presumption of con- 
tinuance. 471 
PRICBS. 

Regulation of, see Police Power. 
PRINCIPAL AND AOBNT. 

See Agency, 
PRINCIPAL AND SURBTY. 

See Suretyship. 
PRIORITIEa. 

See States, 
PRTVUiEOB. 
Against self-incrimination, see Constitu- 
tiotuU Law ; Witnesses, 

PRIVILEGED COMMUNICA- 
TIONS. 

^tw Libel and Slander; Witnesses. 



PROBATE. 

See under Wills, 

PROCEDURE. 

See Trial; Jury, 

PROCESS. 

BCannar and affect of aervioa : See 
Conflict of Laws ; Corporations. 

PROMOTERS. 

See under Corporations. 

PROPERTT. 

Definition under Constitution, see Emi- 
nent Domain, 

Good will as property, see Good Will. 

Restrictions on the use of property, see 
Restrictions and Restrictive Agree- 
ments. 
See also Personal Property; Real 
Property. 

PROZIBCATB CAUSE. 
Intervening oanaea: Deceit: inter- 
vention of wilful act of third person 
in. 468 

PUBLIC LANDS. 
Bona fide purchaser from one obtaining 
patent by fraud. 542 

PUBLIC SERVICE COMPANIES. 

S ee also Carriers. 

VHiat callinga are public: Public 
places of amusement : attempted 
regulation by statute. 472 

Righta and dutiea : Mortgage of fran- 
chise. 214 

PUBLIC OPnCERS. 

Agreements between, as to term of 
office, see Illegal Contracts, 
Powers and duties: Attorney Gen- 
eral : his rights and duties. 525 
Governor's right to sue. 524 
Liability of: %tt Judgments. 
Resignation : Withdrawal of resigna- 
tion : general discussion. 304 
Term of office : Power of legislature 
to extend term. 626 

PUBLIC OPINION. 

Relation between legislation and public 
opinion in England during nine- 
teenth century. jji-i6g 



Q 



QUASI-CONTRACTS. 

See also Constructive Trusts. 
Recovery for benefits conferred 
ii7ithout contract: Payment of 



taxes by lessor on buildings owned 
by lessee : recovery for. 387 

QUIT-XX.AIM DEEDS. 
See Deeds. 



XXll 



HARVARD LAW REVIEW. 



References in heavy-ftoed tjrpe are to Notbs and Rsvisws; in plain type to Rbcbnt Casb; and in itafi- 
dxed type to Akticlbs. Criticisina of articlea in other poblicatioos are abo indicated in the annoal 
periodical index which follows this index. 



R 



RAILROADS. 

Liability to passengers and shippers 

and owners of goods: see under 

Carriers. 

Liability in general: Failure to 

whistle on approaching non-grade 

crossing not negligence per se. 140 

Regulation of Rates : Discussion of 

its history in the United States. 

XT . . 494'Soo 

Necessity of court review: general 

discussion. ^p-^^ii 

REAL PROPERT7. 

See also Attachment ; Disseisin ; Eject- 
ment ; Equitable Conversion; Right 
of Support; Rule against Perpetui- 
ties ; Taxation; Vested Contingent 
and Future Interests, 
RBCJJiVJblHS. 

In bankruptcy, see under Bankruptcy. 

Right of simple contract creditor to 

appointment of receiver. 63 

Set-off : receiver's compensation as sul>- 

ject to. 386 

What necessary to vest title in receiver 

so as to cut off state priority, aga 

RECORDINO AND REOZSTR7 

LAWS. 

General nature and scope: Effect 

of registry system on wife's right 

to upset unrecorded ante-nuptial 

conveyance. 459 

Futility as safeguard against effect of 

transfer of after-acquired property. 

BffiBOt of recording: in general: see 

Bankruptcy. 
Notice by record: Revocation of 
agent's authority: effect of notice 
upon third party. 373 

REDEMPTION. 

See under Tax Sales. 

REFORMATION OF INSTRU- 
MENTS. 

As theory upon which to hold disclosed 
principal upon written contract made 
by agent. 456 

Mutual mistake of fact : genera] discus- 
sion of recission and reformation 
for. 190 

RELEASE. 
Construction and Operation : Gen- 
eral words limited fay particular 
recitals. 66 

Debts due releaser under alias. 66 
Joint-debtor, release of one, effect. 

131 
REMAINDERS. 
Effect of ap)x>intment to remainderman, 
see Rowers. 



Life tenant under void devise holding 
against remainderman, see Adverse 
Possession, 

Tolling of Statute of LimiUtions by life 
tenant as effecting remainderman, 
see Limitations of Actions, 
See also Vested^ Contingent and FuHtre 
Interests, 

RBBCAND. 

See Appeal and Error, 

REMOVAL OF CAUSES. 

Removal from state to federal court 
when state constitution or laws 
deny defendant federal right. 623 

RBFITDIATION. 

Of contracts, see Contracts^ {Defenses: 
non^performanee by plaint^. 

RESCISSION. 
Rescission for fraud or mistake: 
Mutual mistake of fact : seneral 
discussion of rescission and refor- 
mation for. ago 

RES IPSA LOQUITUR. 

See Burden of Proof , 

RES JX7DICATA. 
Persons concluded : Assignee of 
judgment : whether privy to garnish- 
ment proceedings on the juagment. 

305 

Decree in fovor of one co-defendant 

as conclusive in later suit by other 

co-defendant. 305 

RESTRAINT OF TRADE. 

Injunctions not granted in jurisdictions 
where contracts in restraint of trade 
not positively illegal. 301 

" Trusts " and combinatioxiB in gen- 
eral : Combinations of labor to re- 
auire union-shop contracts : whether 
legal. 368 

Contracts not to engage in certain 
business : Enforceability of agree- 
ment otherwise valid by buyer seek- 
ing monopoly. 543 

Combination by agreements as to 
product or prices: Copyright- 
holders and patentees : combmation 
by. "5 

Sherman anti-trust law: Agree- 
ments in restraint of trade by copy- 
right holders and patentees. 125 
Contracts to withdraw from competi- 
tition " collateral to a sale " ; how 
far excepted. 47- 

RESTRAINTS ON ALIENATION. 

See Aiienation, Restraints on. 



TABLE OF CONTENTS. 



XXlll 



References in heavy-faced type are to Notes and Rbvibws : in plain type to Rkbmt Casks ; and in itali- 
dzed type to Akticlbs. Critidams of articles in other pablications are also indicated in the annual 
periodical index which follows this index. 



RBS TRICn ONB A ND RB STRiq 
TIVB AGREBMENTS AS TO 
THB USE OF PROPERT7. 

Agreement to purchase beer from par- 
ticular brewer. 479 

Change in character of locality as ground 
for refusing injunction where dura- 
tion of covenant is limited. 305 

Enforcement of restrictions: who may 
enforce. 140 

Reservation of easement in deed poll : 
operation as restrictive agreement. 

469 

RETAINER. 

Right of, see Executors and Adminis- 
iratars, 
REVERSAL. 

See AppecU and Error. 
REVERSIONS. 
Reversioner's damage for nuisances, see 
Nuisances. 
REVOCATION. 
Of agent's authority, see Agency, 



Of license, see Licenses. 
Of wills, see under Wills, 

RIGHT OF SUPPORT. 

See also Infants. 
Removal of support : right of upper 
against lower owner in building. 626 

— waiver of right to support from sub- 

jacent estate. 626 

— by grantee of granite under land con- 

veyed to third party. 220 

RIGHT OF WAY. 

See Easements. 

BIPABIAN RIGHTS. 

See Waters and Watercourses. 

RULE AGAINST PERP ETUITIE S. 

Clause modifying absolute devise, effect 
of : rejecting part as too remote. 544 

Cy-pris doctrine : nature and scope : 
transforming vested into contingent 
remainders. 306 

Vested gifts to a class: when class 
closes. jgS-doj 



SALES. 
Sabjoot matter of Bale: After-ac- 
quired property : basis and extent 
of buyer's rights. SS7~S^S 

Conditional Bides : Risk of loss. 38(8 
Rights end remedies of seller: 
Equitable lien for purchase price. 472 
Rights and Remedies of bayers: 
Defective performance : effect of ac- 
ceptance on right to sue for. ao8 
Title of goods subject to bill of 
lading: Attachment of ^oods in 
possession of bailee: nghts of 
holder of bill of lading. 370 

Bill of lading to buyer with draft for 
more than contract price : effect of 
retention by seller. 388 

SALVAGE. 

Life salvage. 3x0 

SCHOOLS AND SCHOOL DIS- 
TRICTS. 
See Municipal Corporatiotis. 
SEAMEN. 
General discussion of liability for inju- 
ries to seamen in various cases. 

4*^444 

SENTENCE. 

See under Criminal Law. 
SERVICE. 
On foreign corporations, see Conflict of 

Laws. 
Personal or by publication as affecting 
judgments, see Conflict of Laws; 
Jurisdiction for Divorce, 



SET-OFF AND COUNTERCLAIM. 

Attorney's lien: priority over right of 
set-off. 211 

Receiver's compensation : whether sub- 
ject to set-off. 386 

Set-off of dishonored certified check, 
paid by drawer after drawee's in- 
solvency. 212 

SHERMAN ANTI-TRUST LAVT. 

See under Restraint of Trade, 

BBIPFINO. 

See also Salvage, 
Contract of affreightment : right of par- 
ties to after justifiable abandonment 
of vessel. aoo 

SITUS. 
Of choses in action, see Conflict of Laws, 

SLANDER. 

See Libel and Slander, 

SLEEPING-CAR COMPANIES. 

Duty of carrier as to, see Carriers (Con- 
trol and Regulatian). 

SOVEREIGN. 

Estoppel against sovereigns: general 
discussion. ia6 

SOVEREIGNS. 
Distraint of sovereign*s property. 218 

SPECIAL LEGISLATION. 

See Constitutional Law, 

SPECIAL POLICE OFFICER& 

See Agency, 



XXIV 



HARVARD LAW REVJEIW 



References m heavy-faced type are to Notfs and Rrvirw-s ; in plain type to Rkcvnt Casks ; and in itali- 
cized type to Akticlbs. Criticisms of articles in other publications are also indicated in the annual 
periodical index which follows this index. 



SPECIFIC PBRFORMANCB. 

See also Restrictions and Restrictive 
Agreements as to the Uu of Land, 

Afflrmativo oontraots : Patents : 
agreement to assign future improve- 
ment. c^3 

Negative eontraota: Negative cove- 
nants in affirmative contracts: in 
general : implied covenants. 476 

Legal oonaequenoea of right of 
Bpeciflo performance: Contract 
to bequeath estate, whether creating 
equity on death of contractor. 473 

STARE DECISIS. 

See Constitutional Law ( Vested Rights, 

STATES. 

Officers, duties of, see Public Officers, 

See also Federal Courts; Interstate 

Commerce; Sovereigns. 

Diversion of interstate river; right of 

state to enjoin. 216 

Estoppel against; general discussion. 

xa6 
Exclusion of foreign corporation : gen- 
eral discussion of power of state and 
limitations thereon. agz 

Executive power: distribution of, gen- 
eral discussion. 534 
State right to priority: general discus- 
sion. 29a 
What law governs controversies be- 
tween : general discussion. 606 
STATUTE OF FRAUDS. 

Reformation for mistake of written 
instrument based on oral contract. 

290 



Agreementa in consideration of 
mcuriage: Agreement to cancel 
debt. 58 

Tmata: Conveyance inter vivos upon 
oral trust: whether enforceable by 
cestui after settlor's death. 466 

STATUTE OF LIMITATIONS. 

See Limitation of Actions. 
STATUTES. 
Interpretation: Benefit of statute: 
whether applying to persons outside 
territorial jurisdiction. 215 

Statute giving power to grant liquor 
license: implication of power to 
revoke. jo6 

Statute rec^uiring competitive biddmg 
in municipal contracts: interpreta- 
tion, ijg 

STOCKHOLDERS. 

See under Corporations. 

STOCKBROKERS. 

See Brokers. 

STREETS. 

Sec Highways, 
STRIKES. 

See Carriers. 
SUBSCRIPTIONS. 

For shares of stock, see Corporations, 
SUPPORT, RIGHT OF. 

See Right of Support. 
SURET7SHIP. 
Surety on administration bond : right to 
purchase property of estate. 537 
SURRENDER. 

Of preferences, see under Bankruptcy^ 



TAXATION. 

See also Tax sales, 
G^eneral Umitatlona on the taxing 
power: Constitutional restrictions: 
liberal interpretation of, general dis- 
cussion. 460 

State agency: taxation by federal 
government of South Carolina dis- 
pensary system. a86 
Particular forms of taxation : Fran- 
chise tax on foreign corporation 
which has also become domestic cor- 
poration. 134 

Inheritance tax on foreign real estate, 
in cases of equitable conversion. 

aoz 

Inheritance tax on deceased partner's 
interest in foreign realty belonging 
to partnership. aoz 

Inheritance lax on foreign realty : in 
general. aoz 



Stock transfer tax of New York: 
constitutionality of. 460 

Inheritance tax on subsequently vest- 
ing contingent remainder : constitu- 
tionality, xaz 
Property eubject to taxation : Pro- 
ceeds of imported goods sold in 
original packages. 627 
Property subject to taxation : 

Trade- mark of a foreign corporation. 

67 
Good will, whether merely attribute of 
land under transfer tax. 538 

Particular forma of taxation: In- 
heritance tax : nature of. aoz 
VThere property may be taxed: 
Personalty at domicile of owner. 

ac6 
TAK SALES. 

Redemption : Rights of original 



TABLE OF CONTENTS, 



XXV 



References in heavy-faced type are to Notes and Rsvibws ; in plain type to Rscbnt Casks : and in itali- 
cized type to Akticlbs. CriticiainB of articles in other publications are also indicated in the annual 
periodi6il index which follows this index. 



owner after redemption against 
sub-vendee. 221 

TBLBORAPH AND TEZiBPHONIS 
COMPANnsa. 
Sec also Burden of Proof , 
Contraots and atipulatioiiB limit- 
ing liability : whether affecting 
addressee's liability in tort. 474 

Poles and wires : Ejectment for wire 
over plaintiff's premises. 369 

Liability to addressee : tort liability 
for negligent transmission. 474 

TZtRRZTORIBS. 

Effect of annexation, see Iniemaiional 
Law. 
See Constitutional Law, 
THEATRES. 
Theatres as public service companies, 

see Public Service Companies, 
Rights given by theatre ticxet : rights of 
ticket speculators. 307 

TICKZIT8. 

See Carriers {Ejection of Passengers) ; 
Theatres, 



TITLB, OWNERBHIP AND POS- 
SESSION. 

See also Sales, 

Attached realty : whether in possession 
of court. 210, 377 

Ownership of land as giving right to 
ejectment for encroachment above 
surface. 369 

TORTS. 

See also Admiralty ; Agency ; Char- 
ities and Trusts for Charitable Uses ; 
Conflict of Laws; Corporations; 
Deceit; False Imprisonment; Libel 
and Slander ; Landlord and Tenant ; 
Malicious Prosecution ; Master and 
Servant; Municipal Corporations; 
Negligence : Nuisance ; Proximate 
Cause; Telegraph and Telephone 
Companies. 

Liability of maker or vendor of a 
chattel to a third person in- 
jured by its use: Nature and 
grounds of liability: general dis- 
cussion. 37a 

Interference with business or 00- 
oupation: Inducing breach of 
contract. 68 

Defenses: Indemnity bond: existence 
of, as precluding tort action. 138 
TRADE MARKS AND TRADE 
NABflES. 

Taxation of, see Taxation, 

Marks and names subjeotof owner- 
ship: Personal names: right of a 
person to trade in his own name. 

141 

Protection apart from statute: 



Name representing fiction created 
for business purposes. 629 

TRADE SECRETS. 

Protection in equity : extent of. 537 

TRADE UNIONS. 

Combinations by laborers, see Re- 
straint of Trade. 
Contracts to employ only union labor, 

see Illegal Contracts. 
See also Agency. 
Strikes: Carrier's liability for delay 

caused by, see Carriers, 
Inducing workmen to leave other- 
wise than by strike: Liability 
of union for ordering holiday in 
order to raise wages. 68 

TRANSFER OF STOCK. 

Taxation of, see Taxatiott. 
Forged transfer registered by corpora- 
tion : liability of transferee. 141 
TREATIES. 

See Intematimusl Law, 
TREES. 

See Highways. 
TRESPASS TO REALT7. 
By animals, see Animals. 
What constitutes a trespass: En- 
croachments on land above and 

below surface. 369 

Who may sue : Mortgagee with right 
of entry at time of trespass. 307 
TRIAL. 

Ri^ht to bill of exceptions as vested 
right, see Constitutional Law 
( VesUd Rights). 
See also Appeal and Error ; Coftstitu- 
tional Law ; New Trial. 
Modes of trial : See Jury. 
ProTinoe of court and fury: Mixed 
questions of law and fact. 477 

TROVER AND CONVERSION. 
VThat constitutes conversion : 
money ; theory of conversion as ap- 
plied to. 55 
TRUSTS. 

Industrial "trusts," see Restraint of 

Trade. 
See also Charities and Thists for Chari- 
table Uses ; Constructive jVusts, 
Nature of the trust relation : Exec- 
utor, whether trustee where legatee 
under disability. 383 

Creation and Validity: TenUtive 
trusts in savings bank deposits. 207 
Bequest on secret understanding: 
whether this creates a trust. za8 
Oral trust, conveyance inter vivos 
upon: whether enforceable by ces- 
tui after settlor's death. 466 
Cestui's interest in the res: CestuPs 



XXVI 



HARVARD LAW REVIEW. 



References in heavy-boed type are to Notbs and Rsvisws ; in plain type to Rbcbnt Casks ; nnd in itaK- 
dsed type to ARTXct.BS. Criticisms of articles in other publications are also indicated in the annual 
periodical index which follows this index. 



right to bring action for damages to 
realty. 307 

Following trust property: Cestufs 
right to follow misappropriated 
property or its proceeds 5^f-5^3 

Powers and obligations of trus- 
tees : Liability of trustee acting 
under advice ot counsel. 300 

Liability of trustee for acts of co- 
trustee. 221 
Retainer : duty of trustee who is exec- 
utor to exercise. 538 

Rights and liabiUties of third 



parties: Bank's liability fordepasit 
to his personal account of check 
made payable to triutee. 68 

Estoppel against cestui by negligence 
of trustee. 544 

TRUSTS. 

Righto and liabiUties of third par- 
ties: Priority of assignees of ces- 
tuCs interest: rule Si Dearie v. 
Hall. 61 

Purchasers with and without notice 
and donees. S^'^5^3 



u 



X7LTRA VXRBS. 

See under Corporations, 
UNDISCLOSilD PRINCIPAL. 

See under Agency. 
UNINCORPORATBD 80CIBTIBS. 

See Voluntary Associations, 
UNIONS. 

See Trade Unions, 



U NI T ED STATUS. 

Estoppel against: general discussion. 

ia6 

USURY. 

Nature and ▼alidity of usurious 

oontraot: Estoppel as basis for 

recovery on usurious contract. 454 



VACATION. 

Of judgments, %t% Jttdgmenis, 

VBNDOR AND PURCHASER. 

See Estoppel ; Restrictions and Restric- 
tive Agreements as to Use of Property, 

VBSTED, CONTIN OJfclNT, AND 
FUTURE INTERESTS. 

See also Rule against Perpetuities.^ 
Contingent remainders as distinguished 
from executory devises : whether ex- 
isting to-day. 546 



Subsequentlv vesting contingent remain- 
ders : wnether vested rights. 



laz 



VESTED RIGHTS. 

See under Constitutional Law. 



VOLUNTARY ASSOCIATIONS. 

Bequests to, see Charities and TVustsfor 
Charitable Uses. 

VOTINO. 

See Constitutional Law; Corporations, 



w 



WAOES. 

Regulation of, see Constitutional Law 
{Personal RighU), 
WAIVER. 

Of conditions in contract, legal effect, 
see Insurance, 

Of defective performance by accept- 
ance, see Conditions Precedent. 
WASTE. 

Lienholder's right to bring action at 
law. 389 

WATERS AND WATER- 
COURSES. 
Natural watercourses : riparian 
righto : Extinguishment of riparian 
rights by parol license acted upon. 

393 



Extent of right of appropriation for 
purposes of irrigation. 475 

Natund watoroourses : obstruction, 
pollution and diversion : Diver- 
sion : right of state as bed-owner to 
enjoin. 216 

— right of state to enjoin ; in gen- 
eral. 216 
Appropriation and prescription : 
Extent of right for purpose of irri- 
gation. 475 

Wll'iL 

See Husband and Wife, 

WILLS. 

See also Alienation^ Restraints on ; Con- 
flict of Laws ; Legacies and Devises; 
Pvioers; Rule against Perpetuities, 



TABLE OF CONTENTS. 



xxvii 



Referenees in heavywfiwed type are to Notbs and Rbvibws ; in plain type to Rbcbnt Casks; and in italic 
died type to Articlbs. CriticiBms of articlen in other publications are also indicated in the annual 
periodical index which follows this index. 



lEbcaontion of. See Conflkt of Laws. 

AUstake, undue Influonoo and 
fraud: Advances: conclusiveness 
of recital in will as to amount of. 68 

Probate: Collateral attack for want 
of jurisdiction upon decree of 
domestic probate court, see under 
Judgments, 

Revocation: Divorce of beneficiary 
from testator. 69 

Incorporation by reference: Doc- 
trine distinguished from rule reauir- 
ing testator's signature at end of 
wm. 528 

Repudiation of doctrine in New York. 



WILSON ACT. 

State police power under. 

WITNESSES. 
Competency in general: Wife 



53 



witness aeainst husband indicted for 
killing child. 545 

Privilege against self-incrimina- 
tion: Corporations: whether en- 
titled to privilege. 523 
Statutorv protection against prosecu- 
tion by state, not by United 
States. 299 

Privileged communications : In- 
tended witness: slanderous state- 
ment bv, to attorney and dient. 219 
Report 0! railway accident. 222 



xxviii HARVARD LAIV REVIEW'. 



BOOK REVIEWS. 

PACK 

Brief Making and the Use of Law Books. By William M. Lile, Henry S. 

Redfield, Eugene Wambaugh, Alfred £. Mason, and James E. Wheeler. 

Edited by Nathan Abbott 637 

Baldwin : The American Judiciary 230 

Centralization and the Law. With an Introduction by Melville £. Bigelow . . 395 

Civil Code of the Republic of Panama. Translated by Frank L. Joannini ... 76 

Clark: Studies in Australian Constitutional Law. Second edition 319 

Clark and Skyies : A Treatise on the Law of Agency 315 

Clark and Marshall: A Treatise on the Law of Crimes. Second edition by 

Herschel Bouton Lazell 150 

Clement : The Law of Fire Insurance 399 

Clementson: A Manual Relating to Special Verdicts and Special Findings by 

Juries 484 

Cotton : The Constitutional Decisions of John Marshall 554 

Coudert: Addresses, Historical, Political, Sociological 318 

Davis : Corporations 555 

Demarest : Hints for Forensic Practice 555 

Ewell : A Treatise on the Law of Fixtures 397 

Girard : A Short History of Roman Law 556 

Goodrow : The Principles of the Administrative Law of the United States . . 316 

Goodwin : A Treatise on the Law of Real Property 636 

Gray : The Rule against Perpetuities. Second edition 635 

Hatschek : Englisches Staatsrecht, mit Beriicksichtigung der fiir Schottland und 

Irland geltenden Sonderheiten 631 

Howe : Studies in the Civil I^w. Second edition 394 

Howes : The American J^w Relating to Income and Principal 556 

Hughes: Procedure: Its Theory and Practice 634 

Judson : The Law of Interstate Commerce and its Federal Regulation .... 398 
Kales : Conditional and Future Interests, and Illegal Conditions and Restaints 

in Illinois 483 

Kenny: A Selection of Cases Illustrative of the English Law of Torts .... 147 
Lawson : The Principles of the American Law of Contracts at Law and in Equity. 

Second edition 229 

Long : A Treatise on the Law of Domestic Relations 552 

Maine : Ancient Law. With Introduction and Notes by Sir Frederick Pollock . 485 
Maitland: Year Books of Edward II. Vol. III. (Publications of the Selden 

Society) 485 

May : The Law of Crimes 553 

Meili : International Civil and Commercial Law. Translated and supplemented 

by Arthur F. Kuhn 148 

Mercier : Criminal Responsibility 486 

Noyes : American Railroad Rates 552 

Page : The Law of Contracts 312 



TABLE OF CONTENTS. xxix 

PACB 

Pollock : Principles of Contracts at Law and in Equity. Third American from the 
seventh English edition. With Annotations and Additions by the late 

Gustavus A. Wald and Samuel Williston 550 

Poineroy : A Treatise on Equitable Remedies 481 

Pomeroy : Equity Jurisprudence. Third edition. Enlarged and supplemented by 

John Norton Pomeroy, Jr 481 

Ridges : Constitutional Law of England 146 

Schouler : Law of the Domestic Relations 149 

Schouler : The Law of Bailments 228 

Scott : Cases on Quasi-Contracts 227 

Taylor: Jurisdiction and Procedure of the Supreme Court of the United States . 314 
Tucker: A Manual Relating to the Formation and Management of Mercantile 

and Manufacturing Corporations. Second edition 230 

Wharton: A Treatise on the Conflict of Laws. Third edition. Edited by 

George H. Parmele 75 

Wharton and Stille : Medical Jurisprudence 74 



TABLE OF CASES. 



References in heavy-faced type are to Notes; all others are to Recent Cases. Cita* 
tions to decisions which were noticed before their appearance in any regular report 
have been supplied wherever possible. 



PAGB 

469 
539 



470 
215 



Agawain Nat. Bank, Bailey v> . 
AUstock v^ Moore Lime Co. 
Alabama, etc., Ry. Co. v. Thomp- 
son (26 Sup. Ct. Rep. 161) . 
Alfson V, The Bush Co., Lim. . 

Allen V. Ellis 305 

Allen, Illinois Central Rd. Co. 

V 298 

American Lithographic Co. v. 

Werckmeister 380 

American Lithographic Co., 

Werckmeister v 380 

Anderson v. Bassman .... 475 

Anderson, In re 59 

Antrobus, Attornev-General v, 55, 64 
Apollo Co., White-Smith Pub. 

Co V 134 

Appleton & Co., Baker v. . . 300 
Attorney-General v. Antrobus <5, 64 
Armour Packing Co. v. Lacy (20 

Sup. Ct. Rep. 232) .... 380 

Atkin.s, Grilley v 621 

Automatic, etc., Co. v, Cunning- 

hame 620 

Avery, Barklow v 463 

Bailey v, Agawam Nat. Bank . 469 

Bair, Bell v 475 

Baker v, D. Appleton & Co. . 300 

Balk, Harris v 132 

Bank of Morilton, Kentucky Re- 
fining Co. V 388, 370 

Bank of Pittsburgh v. Porter . 471 

Bank of Scotland, Logan v. , . 618 
Barclay, Corporation of Sheffield 

V. ([1905] A. C. 392) ... 141 

Barklow v. Avery 463 

Barmer, Content v. . . . 529, 535 
Barnard, Costello v. (76 N. E. 

Rep- 599) 468 

Barnes, Dickas v 616 

Bassman, Anderson v 475 

Batchelder v. Central National 

Bank 68 

Bay, Cincinnati, etc., Packet Co. 



Beardslee & McDermott v. In- 
graham & Campton (183 N. Y. 

4") 377 

Beilharz, St. Louis, etc., Co. v, \yi 

Bell V, Bair 475 

Benedict, In re 543 

Bennet v. Southern Pine Co. . 221 

Bennett, In re 538 

Berman, Morrissey v 139 

Best V. Gunther .... 373, 377 

Betjemann, Pimel v 385 

Big Sandy Ry. Co., Yates v, . 307 

Black, Oughton v 135 

Blacker x/. State 469 

Blanchard Co. v^ Simon ... 141 

Blumer 7/. Iowa Land Co. . . 463 
Board of Trade of Chicago v. 

Christie Grain and Stock Co. . 65 
Bobbs-Merrill Co. v. Straus 125, 140 
Boston and Maine R. R., Wes- 
ton v 53X, 536 

Bourne, In re 541 

Brailsford, Rex v 477 

Braithwaite v. Foreign Hard- 
wood Co. ([1905] 2 K. B. 

543) 63 

Brigham, Hungerford Co. v. 4^4, 475 
Brinsmade, Jones 7/. (183 N. Y. 

258) 385 

Broken Hill Proprietary Co., 

Potter V 295, 298 

Brown, Hibbs v 616 

Brown v, Vossen 60 

Brunke v. Missouri, h K. Tele- 
phone Co 622 

Bruns, Jackson v 626 

BuUey, The 209 

Bund'rick, Fincke v 537 

Burr, McCarg v 217 

Burroughs v. United States . . 470 

Bush Co., Lim., Alfson v, . . 215 
Butler V, Frontier Telephone 

Co 369,382 

Butler V, Hoboken Printing, etc. , 

Co 539 



V. (26 Sup. Ct. Rep. 208) . . 472Byrns v. United Telpherage Co. 133 



TABLE OF CASES, 



XXXI 



Camors-McConnell Co. v, McCon- 

ncll 543 

Canadian, etc., Co., Greenwood 

Grocery Co. t/ 388 

Canadian Pacific Ry. Co., Sav- 
age V, 222 

Carpenter, Cook v 21 3 

Casey v. Hoover 389 

Cavalier v. Pope ([1905] 2 K. B. 

757) 385 

Cave. Fitzroy v. ( [1905] 2 K. B. 

364) 376 

Cayuga Lake Cement Co., Smith v, 211 
Central Dist. Printing & Tele- 
graph Co., Law V 622 

Central National Bank, Batch- 
elder v 68 

Chamberlain v. Chamberlain . . 471 

Chant, In re 57» 65 

Chesapeake, etc., R. R. Co., Com- 
monwealth V 135 

Chesapeake & Ohio Ry. Co. v. 

Stock & Sons .... 123, 136 

Chicago & A. R. Co. v. Walker 378 

Chicago, etc., R^. Co., Jordan v. 384 
Chicago, etc., Co. v. People ex 

reL McCord 533 

Christ V, Zehner 212 

Christie Grain and Stock Co., 

Board of Trade of Chicago v. 65 
Churchill v, Russell . . 293, 308 
Cincinnati, etc.. Packet Co. v. 

Bay (26 Sup. Ct. Rep. 208) . 472 

City Garbage Co., McKee v. . . 63 
City of Indianapolis, Monag- 

han V, 138 

City of Middletown, MacMul- 

len T/ 618 

City of Nicholasville, Clark v. . 66 
City of Pawtucket v. Pawtucket 

Electric Co 138 

City of Seattle, Cunningham r/. . 386 
City of Syracuse, Crapo v. 458, 468 
City of Tampa, Tampa Water 
Works Co. V. (26 Sup. Ct. Rep. 

23) 2T4 

Clark V. City of Nicholasville . 66 

Clark 7/. Nash 62 

Clarkson Home v, Missouri, etc., 

Ry. Co. 141 

Cohen, Jacobs v 388 

Colbath, People v 302 

Cole, Ellis V 305 

CoIIinsville Granite Co., Phillips v. 220 
CoUisterv. Hayman (183 N. Y. 

250) 307 

Comitti V, Maher 627 

Commonwealth v, Chesapeake, 

etc., Ry. Co 135 



Commonwealth t/. Sisson ^75 N. 

E.Rep.619) 203,214 
V, Tucker (76 N. 

E. Rep. 127) 303 
ex reL Vicars v, 
Wampler . . 218 
Connelly, Sibery v. . . . 46a, 467 
Content v. Barmer . . . 529, 535 
Converse, First National Bank v. 

608,620 

Cook V. Carpenter 213 

Corporation of Sheffield v> Bar- 
clay ([1905] A. C. 392) . . 141 
Cosgrove, Scarborough v. . . 534 
Costello v. Barnard (76 N. E. 

Rep- 599) 468 

Crapo V. The City of Syracuse 458, 468 
Crenshaw, Pabst Brewing Co. v, 53, 65 
Cunningham v. City of Seattle . 386 
Cunninghame, Automatic, etc., 

Co. V 620 

Daniels v. Homer 625 

Dashiell, Texas, etc., Ry. Co. v. 66 

Davy V. Scarth 386 

Dawson v, Dawson 301 

Delaney v. Flood 382 

Detroit Timber & Lumber Co., 

United States v 542 

Devon aid 7/. Rosser 214 

Dickas v, Barnes 616 

Donahue v. Keystone Gas Co. . 64 

Donovan v. Pennsylvania Co. . 298 

Dresser, Whitney v 534 

Dryden, Petey Mfg. Co. v. . . 615 

Duff, Ex parte 468 

Duffy V. New York Evening Post 625 

Dwyer v. Nolan 384 

Ebelhar v. German American Se- 
curity Co.*s Assignee . . 6x3, 619 
Edison, etc., Co., Miller v, . . 541 
Edwards v. Manufacturer's Bldg. 

Co 300 

Effray v. Effray 623 

Eliza Lines, The (26 Sup. Ct. 

Rep. 8) 200, 214 

Ellis, Allen v 305 

V. Cole 305 

Emmons' Will, Inre . , . , 545 
Equitable, etc.. Society, Lord v. 62, 379 
Evanson, Hart v, 616 

Fairbanks, Morse & Co., Lucile 
Min. Co. V 208, 220 

Fairmont Coal Co., Griffin v, . 627 

Farley National Bank v* Pollock 
& Bemheimer 464 

Farmer v. Kearney 540 



XXXIl 



HARVARD LAW REVIEW. 



Farmers' Loan & Trust Co. v. 

Meridian Waterworks Co. . . 214 
Fen wick, Keece Folding Machine 

Co. V 542 

Fernandez, Perez v 625 

Fincke v, Bundrick • v • • 537 
Firemen's Ins. Co., McCarter, 

Atty. Gen., v 301 

First National Bank v. Converse 

608,620 
First National Bank v. Hazie . 137 
First Nat. Bank v. Western Union 

Tel. Co 474 

First State Bank of Overton v. 

Stephens Bros., 383 

Fitzgerald, Lancaster County v. 389 
Fitzroy z/. Cave ([1905] 2 K. B. 

364) 376 

Flood, Delaney, v 382 

Flynn, People ex reL Loughran v. 

607, 618 

Forbes, Stone v 304 

Foreign Hardwood Co., Braith- 

waite V. ([1905] 2 K. B. 543) . 63 
Forest Park, etc., Co., Tri-State, 

etc., Co. V 620 

Foster, Phinney v 387 

Fralick v. Lyford . . . aoa, 213 
Frontier Telephone Co., Butler 

V 369^382 

Gall V, Gall 619 

General Finance, etc., Co., Na- 
tional Trustees, etc., Co., v. . 308 
German American Security Co.'s 
Assignee, Ebelhar v. . 613, 619 

Gibbey, Villar v 624 

Glamorgan Coal Co., South Wales 

Miners' Federation v. . . . 68 

Goodrich, Ward v 379 

Gordon v. Yost 382 

Gould V. Gould 298 

Greenberg v. Western Turf 

Ass'n 472 

Greenwood Grocery Co. v. Cana- 
dian, etc., Co 388 

Griffin v. Fairmont Coal Co. . 627 

Grilley ?/. Atkins 621 

Groel V. United Electric Co. . 52, 63 

Guardians, Tozeland v. . . . 540 
Gunther, Best v. ... 373, 377 

Haddock v. Haddock .... 586 
Hale V. Henkle .... 533, 536 
Hall V. West, etc., Co. ... 139 
Halter v. State .... 532, 542 

Harris v. Balk 132 

Harris, Shepherd v 221 

Hart V. Evanson 616 



rAGV 

Haversham Grange, The . . . 130 
Hawaii ex rcL County of Oahu v. 

Whitney 379 

Hawkins v, Hawkins .... 621 
Hayman, CoUister v. (183 N. Y. 

250) 307 

Hayne 7/. Union St. Ry. Co, (76 

N. E. Rep. 219) 378 

Hazie, First National Bank z/. . 137 

Hebard, Lanier v 136 

Hendershot, Mills v 536 

Henkle, Hale v 523, 536 

Henry v. State .... 524, 536 
Hepplenheimer, See v. . . 366, 381 

Hibbs V, Brown 616 

Higgins V. Hisgins . . . 459, 470 
Highland Mining Co., Strickley v 535 
Hill V. Moore .... 205, 213 

Hill, Walker v 219 

Hinckley v, Schwarzschild . . 298 

Hinman, Wilson v 215 

Hobbs T/. Upington 302 

Hoboken Printing, etc., Co., But- 
ler 2/ 539 

Hodges V. Waters . . . 375, 385 
Hoffman, Administrator v. Union 
Dime Savings Institution 287, 296 

Hollingshead, Pakas^ 619 

Homer, Daniels v 625 

Hoover, Casey v 389 

Houston Electric Co., Lewis v. , 131 
Houston Ice, etc , Co. v. Keen an 134 
Hudson Water, etc., Co., McCar- 
ter, Atty. Gen., v 216 

Hungerford Co. v, Brigham 454, 475 

Ilford Gas Co., Ocean Accident, 

etc., Corporation v 307 

lUinois Central Rd. Co. %f. Allen 298 
Illinois, State of, v. State of Mis- 
souri 606, 623 

Ingraham v. National Salt Co. . 210 
Ingraham & Campton, Beardslee 
& McDermott v. (183 N. Y. 

4") 377 

Interstate Commerce Commis- 
sion, New York, etc., R. R. v, 
(26 Sup. Ct. Rep. 272) . 453, 464 
Iowa Land Co., Blumer v. . . 463 
Iselin, Knickerbocker Trust Co. v, 61 7 

Jack V, State of Kansas . 299 

Jackson v. Bruns 626 

Jacobs V, Cohen 388 

Johnson v. Mutual Life Ins. Co. 132 

Johnson v. Smith 465 

Jones T/. Brinsmade (183 N. Y. 

258) 385 

Jones' Estate, In re 69 



TABLE OF CASES. 



XXXlll 



Jordan v. Chicago, etc, Ry. Co. 
Ju Toy, United States v. . . . 



PAGB 

6i 



Kearney, Farmer v 540 

Keenan, Houston Ice, etc., Co. v. 134 
Keenan, In n (107 N. Y., App. 

Div., 234) xa8, 141 

Kekewich, Stucley v. ([1906] i 

Ch.67) 473 

Kellogg V. Lowe 50, 65 

Kelly z/. Selwyn 61 

Kelsey, In re 68 

Kelsey, People ex nL Spencerian 

Co. V. (105 N. Y., App. Div., 

132) 67 

Kennedy, Selden's Executor v. . 535 
Kentucky v. Powers 623 

Kentucky Refining Co. v. Bank 

of Morilton 370, 388 

Kentucky, Union, etc., Company 

V 206, 321 

Keppel V. Tiffin Savings Bank . 59 
Keystone Gas Co., Donahue v, . 64 
Klopot V. Metropolitan Stock Ex- 
change 66 

Knickerbocker Trust Co. v. Iselin 617 

Myers z/. 133 
Knoxville Water Co. v. Knox- 

ville (26 Sup. Ct. Rep. 224) . 380 

Koslowski V, Newman .... 473 
Kurzrok, Schlesinger v. (47 N. Y. 

Misc. Rep. 634) 212 

Lacy, Armour Packing Co. v, (26 
Sup. Ct Rep. 232) .... 380 

Lamm, Se^er v 298 

Lancaster County v* Fitzgerald . 389 

Lanier v. Hebard 136 

Lansing, In Matter of . . . . 139 
Lattan v. Van Ness (107 N. Y., 

Apo. Div., 393) . . . aoy, 221 
Lavalley v» Ravenna .... 388 
Law V. Central Dist. Printing & 

Telegraph Co 622 

Leach v. Missouri^ etc., Co. . . 62 

Leaycraft, McClure v 305 

Levy V, Louisville Gunning Sys- 
tem 526, 536 

Lewis V. Houston Electric Co. . 131 

Lipper, Appeal of 213 

Logan V, Bank of Scotland . .618 
Lord V. Equitable, etc., Society 

02, 379 
Louisville & N. R. Co. v. Saw- 
yer 140 

Louisville Gunning System, Levy 

v 526, 536 

Lowe, Kellogg v. ... 50, 65 



Lucile Min. Co. v. Fairbanks, 

Morse & Co 2o8, 220 

Lyford, Fralick v. 202, 213 

McCabe v, Narragansett Elec- 
tric Lighting Co 381 

McCargv. Burr 217 

McCarter, Atty. Gen., v. Fire- 
men's Ins. Co 301 

McCarter, Atty. Gen., v. Hudson 

Water, etc., Co 216 

McCarthy v. Packard Co. . . 131 
McClure v. Leaycraft .... 305 
McConnell, Camors-McConnell 

Co. V 543 

M'Ewan, Watson v. ... 219 

Mcllquam, Wilkinson, etc., Co. 

V, 540 

Mackay, In re 383 

McKee v. City Garbage Co. . 63 
MacKenzie v. Trustees of Pres- 
bytery of New Jersey ... 545 

McLain, People v 386 

MacMullen v. City of Middletown 618 

Maher, Comitti v 627 

Makin, Morley v. . . . 456, 463 
Manufacturer's B'ldg. Co., Ed- 
wards V 300 

Marcus, People v. (no N. Y., 

App. Div., 255) . . . 3681 379 
Martm v, Nicnolson Publishing 

Co. (40 So. Rep. 376) ... 539 
Marvin, In re, ([1905] 2 Ch. 490) 136 
Massachusetts Institute of Tech- 
nology, Wilson V. ... 140 
May, Russell v, ... 6x2, 621 

Mei^han, Matter of 211 

Meridian Waterworks Co., Farm- 
ers' Loan & Trust Co. v, . . 214 
Messick, Southern Indiana Ry. 

Co. V 130 

Metropolitan Stock Exchange, 

Klopot V. 66 

Michel, Vohmann v, ... 544 
Miller v. Edison, etc., Co. . . 541 
Mills V, Hendershot .... 536 
Minsky, Silverman v. . . aoo, 301 
Missouri, State of. State of Illi- 
nois V 606, 623 

Missouri & K. Telephone Co., 

Brunke v 622 

Missouri, etc., Ry. Co., Clarkson 

Home V. 141 

Missouri, etc., Co., Leach v. 62 

Mitchell v. Tonkin 3^7 

Mohr V. Williams 220 

Monaghan v. City of Indianapolis 1 38 
Mooney v. Williams .... 296 
Moore, Hill v. ... 205, 213 



XXXIV 



HARVARD LAW REVIEW. 



Moore Lime Co., Ailstock v. 539 
Morley v, Makin . . . 456, 463 

Morrissey v. Berman .... 139 

Mortimer, In re 306 

Mount V, Tuttle (183 N. Y. 

358) •. 457.465 

Muhlker v. New York, etc., K. 

R. Co 67 

Mulford, Inre^ 299 

Murray v. State ex reL Luallen 304 

Mutual Life Ins. Co., Johnson v, 132 
Myers v, Knickerbocker Trust 

Co 133 

Narragansett Electric Lighting 

Co., McCabc v 381 

Nash, Clark v 62 

National Salt Co., Ingraham x/. . 210 
National Trustees, etc., Co. v. 

General Finance, etc., Co. . . 308 

Newman, Koslowski z/. . . . 473 
New Rochelle Water Co., Pond v. 

(183N. Y. 330) 467 

New York, etc., R. R. Co., 

Muhlker v (i^ 

New York, etc., R. R. v. Inter- 
state Commerce Commission, 
(26 Sup. Ct. Rep. 272) . 453, 464 

New York Evening Post, DufEy «/. 625 

Nichols, Taylor Iron, etc., Co. v, 537 
Nicholson Publishing Co., Martin 

V. (40 So. Rep. 376) .... 539 
No. 9 Bomare Road, In re 6x0, 619 

Nolan, Dwycr v 384 

North V. ^forth 61 

Northwestern University, Parks 

V 467 

Ocean Accident, etc., Corporation 

V, Ilford Gas Co 307 

Ostrander, In re 297 

Oughton V. Black 135 

Pabst Brewing Co. v. Crenshaw 53, 65 

Packard Co., McCarthy v, . . 131 

Pakas V. Hollingshead .... 619 

Parks V. Northwestern University 464 
Pawtucket Electric Co., City of 

Pawtucketz^. 138 

Payne, Texas, etc., Ry. Co. v. . 60 

Pearse, In re 131 

Pease & Dwyer Co. v. State 

National Bank 130 

Peaslee Gaulbert Co., Rochester 

German Ins. Co. v 217 

Pennsylvania Company, Dono- 
van V 298 

People V, Colbath 302 



PAGB 

People V. McLain 386 

V. Marcus (no N. Y., 

App. Div., 255) . 368, 379 
ex reL Armstrong v. War- 
den, etc., of the City of 
New York .... 379 
ex reL Burke v. Wells . 627 
ex reL Hatch v. Reardon 

460, 473, 627 
ex reL Loughran v» Flynn 

607, 618 
ex reL McCord, Chicago, 

etc., Co. V. .... 533 
ex reL Perkins v, Reardon 

6x1,620 
ex rel Spencerian Pen Co. 
V. Kelscy (105 N. Y., 
App. Div., 132) ... 67 
Perez v. Fernandez . . . ^ . 625 

Peterson v. State 297 

Petey Mfg. Co. v, Dryden . .615 
Phillips V, Collinsville Granite Co. 220 

Phinney v. Foster 387 

Phcenix Assurance Company 7/. 

Spooner 302 

Pimel V. Betjemann 385 

Pittsburg, Sample v 465 

Plasters, State ex reL Healey z/. 626 

Piatt, Voke v. 622 

Pollock & Bemheimer, Farley 

National Bank v 464 

Polsue & Alfieri, Rushmer v* . • 474 
Pond V. New Rochelle Water Co. 

(183N. Y.330) 467 

Pope, Cavalier v, ([1905] 2 K. B. 

757) 385 

Porter, Bank of Pittsburgh v. .471 
7/. Roseman .... 55, 68 
Potter V. Broken Hill Proprietary 

Co 295,298 

Powers, Kentucky v 623 

Provident Life & Trust Co., 

Thomas v 64 

Pulaski County, Sarlo v. . . . 306 

Ravenna, Lavalley v 388 

Reagan v. Union Mutual Life 

Ins. Co 470 

Reardon, People ex reL Hatch v. 

460, 473, 627 
Reardon, People ex r^/ Perkins v, 

60Z, 620 
Reece Folding Machine Co. v, 

Fenwick 542 

Reed v. Spear 213 

Rex V. Brailsford 477 

Rex V. Tideswell 138 

Richardson I/. Stuesser . . . . 217 

Robertson 7/. Robertson • . . 216 



TABLE OF CASES, 



XXXV 



PAGE 

Rochester German Ins. Co. v, 

Peaslee Gaulbert Co. ... 217 
Rosehill Race Course Co., In re 

The 538 

Roseman, Porter v, ... 55, 68 

Rosser, Devonald v 214 

Ruppert V. Zang 617 

Rushmer v. Polsue & Alfieri . . 474 

Russell, Churchill z/. . . . 293, 308 

V, May .... 6x2, 621 

St. Louis, etc., Co. v, Beilharz . 137 
St. Louis, etc., Ry. Co. v, Shaw 

127, 133 
St. Louis, etc , R. R. Co., Sterling 

V. 54.60 

St. Louis Gunning Advertising 

Co. V, Wanamaicer & Brown 

6x4, 622 
St. Louis Transit Co., Sluder v, 

288, 303 
Sample v. Pittsburg .... 465 
Samuel v. Wanamaker . . . . 210 
Sarlo V. Pulaski County • . . 306 
Savage v. Canadian Pacific Ry. 

Co 222 

Sawyer, Louisville & N. R. Co., 

V 140 

Scarborough v. Cosgrove . . . 534 

Scarth, Davy v 386 

Schenkberg 2/. Treadwell ... 59 
Schlesinger z/. Kurzrok(47 N. Y. 

Misc. Rep. 634) 212 

Scholefield, In re ([1905] i Ch. 

408) 122, 132 

Schwarzschild, Hinckley v, . . 298 

Seager v. Lamm 298 

Secretary of State for War v. 

Winne ( [1905] 2 K. B. 845) . 218 
See V. Heppenheimer . . 366, 381 
Selden's Executor v. Kennedy . 535 

Selwyn, Kelly v 61 

Shaw, St. Louis, etc., Ry. Co. v. 

127, 133 

Shepherd v, Harris 221 

Shoemaker v. Ulmer .... 629 
Sibery v, Connelly . . . 462, 467 
Silverman v. Minsky . . 290, 301 
Simon, Blanchard Co. v. . . . 141 

Sipley v. Stickney 466 

Sisson, Commonwealth 7'. (75 

N. £. Rep. 619) . . . 203,214 
Sluder v, St. Louis Transit C«>. 

288, 303 
Smidmore 7/. Smidmore . . . 544 
Smith V. Cayuga Lake Cement 

Co 211 

Johnson v 465 

Smoke v. Smoke 466 



PAGB 

Soale, State ex rel. Niece 7/. . . 64 
South Carolina, State of, v. 
United States (26 Sup. Ct. Rep. 

110) 286, 307 

South Wales Miners' Federation 

V. Glamorgan Coal Co. ... 68 
Southern Indiana Ry. Co. v, 

Messick 130 

Southern Pine Co., Bennet T/. 221 

Sparks v. Sparks 135 

Spear, Reed v 213 

Spooner, Phoenix Assurance 

Co. V 302 

Standard Fire Ins. Co., Yanko & 

Lewitas v 624 

State, Blacker v 469 

Halter v 532, 542 

Henry v 524, 536 

Jack V 299 

Peterson v 297 

V. Williams 467 

V, Williams . . . 292, 304 

V. Woodrow 545 

ex rel, Hensley v. Plasters 626 
ex rel. Luallen, Murray v . 304 
ex rel. Niece v. Soale 64 

State National Bank, Pease & 

Dwyer Co. v 130 

State of Missouri v. State of Illi- 
nois 606, 623 

State of South Carolina v. United 
States (26 Sup. Ct. Rep. 1 10) 

286, 307 
Stephens Bros., First State Bank 

of Overton v 383 

Sterhng v, St. Louis, etc., R. R. 

Co 54,60 

Stickney, Sipley v 466 

Stock & Sons, Chesapeake & 
Ohio Ry. Co. v. . . . X 23, 136 

Stone V Forbes 304 

Straus, Bobbs-Merrill Co. v. X25, 140 
Strickley v. Highland Minin*j Co. 535 
Stucley V. Kekewich ([1906] i 

Ch. 67) 473 

Stuesser, Richardson z/. . . . 2:7 

Tampa Water Works Co. v. City 
of Tampa (26 Sup. Ct. Rep. 

23) 2r4 

Taskers & Sons, Ltd., In re , . 303 

Taylor Iron, etc., Co., v. Nichols 537 

Texas, etc , Ry. Co. v. Dashiell . 06 

V, Payne . 60 

The Bulley 209 

The Eliza Lines .... 200, 214 
Thomas v. Provident Life & Trust 

Co 64 



XXXVl 



HARVARD LAW REVIEW. 



PACK 

Thompson, Alabama, etc., Rv. 

Co. v. (26 Sup. Ct. Rep. 161). 470 

Tideswell, Rex v 138 

Tiffin Savings Bank, Keppel v. . 59 

Tonkin, Mitchell v. .... 387 

Tozeland v. Guardians . . . 540 

Tread well, Schenkberg v. . . 59 
Tri-State, etc., Co. v. Forest 

Park, etc., Co 620 

Trono v. United States . . . 300 
Trustees of Presbytery of New 

Jersey, MacKenzie v. . . . 545 
Tucker, Commonwealth v, (76 N. 

E. Rep. 127) 303 

Tuttle, Mount v. (183 N. Y. 358) 

457. 465 

Ulmer, Shoemaker v 629 

Union Bank, In re 387 

Union Bridge Co., United 

States V 536 

Union Dime Savings Institution, 

Hoffman, Administrator v. 287, 296 
Union, etc., Company v, Ken- 
tucky 206, 221 

Union Mutual Life Ins. Co., Rea- 
gan V 470 

Union St. Ry. Co., Hayne v. (76 

N. E. Rep. 219) 378 

United Electric Co., Groel v. 5a, 63 
United SUtes v. Detroit Timber 

& Lumber Co. 542 
V. Ju Toy ... 61 
V. Union Bridge 

Co 536 

Burroughs x/. . . 470 
SUte of South 
Carolina 7/. (26 
Sup. Ct. Rep. 
no) . . 286,307 
Trono r. . . . 300 
Walker z^. . xa6, 136 
United Telpherage Co., Byms v. 133 
Upington, Hobbs v 302 



Van Kirk v. Vermont State Co. 377 
Van Ness, Lattan v. (107 N. Y., 

App. Div., 393) . . . 207, 221 
Vanuzem's Estate, In re 20Z, 221 

Vermont State Co., Van Kirk 7/. 377 

Villar V. Gibbcjr 624 

Vohmann v. Michel 544 

Vokc v. Piatt 622 

Vossen, Brown v 60 



PAG« 

Walker, Chicago & A. R. Co. t/. 378 

V. Hm 219 

V. United States . 126, 136 
Wampler, Commonwealth ex reL 

Vicars v 218 

Wanamaker & Brown, St. Louis 

Gunning Advertising Co. t/. 6x4, 622 

Wanamaker, Samuel V. . . . 219 

Ward V. Goodrich 370 

Warden, etc., of the City of 
New York, People ex rel Arm- 
strong V 379 

Waters, Hodges v. . . . 375, 385 

Watson 7/. M'Ewan 219 

Weld V. Weld 58 

Wells, People ex rel Burke 7/. . 627 
Werckmeister v* American Lith- 
ographic Co 380 

West Coast Gold Fields (Lim.) 

/«r^([i905]i Ch. 597) . . 377 

West, etc., Co., Hall r. . . . 139 

Western Turf Ass'n, Greenberg v. 472 
Western Union Tel. Co., First 

Nat. Bank v 474 

Weston V, Boston and Maine R. 
R 531. 536 

White-Smith Pub. Co. t/. Apollo 

Co 134 

Whitman, In re 382 

Whitney v. Dresser 534 

Hawaii ex reL County 

of Oahu V, ... 379 

Wilkinson, In re 212 

Wilkinson, etc., Co. v, McIIquam 540 

Williams, Mohr 7/ 220 

Mooney v 296 

State 7/. . . . 292, 304 

State V 467 

Wilson 7/. Hinman 215 

V. Massachusetts Institute 

of Technology . . 140 
Winne, Secretary of State for 

War V. ( [1905] 2 K. B. 845) . 218 

Woodrow. State v 545 

Wray v. Wray 219 

Wylly*s Trusts, Re 308 

Yanko & Lewitas v. Standard 624 

Fire Ins. Co 

Yates V. Big Sandy Ry. Co. . . 307 

Yost, Gordon v 382 

Zang, Ruppert v 617 

Zehner, Christ T' 212 



HARVARD 

LAW REVIEW. 

VOL. XIX. NOVEMBER, 1905. NO. 1 

EQUITABLE CONVERSION.^ 

IV. 

PREVIOUS to the case of Ackroyd v. Smithson,^ it was held 
that an unqualified direction by a testator in his will to sell 
land, or to buy land with his money, created a complete conver- 
sion in equity of the land into money, or of the money into land, 
and that this conversion was effective for all the purposes of devo- 
lution at the testator's death, so that land thus converted would 
devolve in equity as if it were money, i. e., would go to the execu- 
tor, in whose hands it would be money for all purposes, for ex- 
ample, for the payment of debts and legacies, and for distribution 
among the testator's next of kin; and so that money thus con- 
verted would devolve in equity as if it were land, i. e., would pass 
as land to the testator's devisee, or descend to his heir, — so that 
it would neither be assets for payment of debts, nor liable for 
legacies, and the testator's next of kin would have no claim 
upon it. 

Upon what theory was it, then, that this equitable conversion 
by will of land into money or money into land was held to have 
the effect of causing land to devolve in equity at the testator's 
death as if it were money, and money as if it were land ? It is 
plain, and always was plain, that a will can produce no effect till the 
testator's death.® If, then, a testator devise his land to trustees 

1 Continued from 18 Harv. L. Rev. 245. * i Bro. C. C. 503. 

' In Beauclerk v. Mead, 2 Atk. 167, a testator by his will devised his land, in the 
events which happened, to his sister for life, remainder to A for life, remainder to B 
tor life, and he also directed the residue of his personal estate to be laid out in pur- 
chase of land to be settled to the same uses to which his land was devised. By a 



2 HARVARD LAW REVIEIV. 

in trust to be sold, but fail to make an effective disposition of all 
the proceeds of the sale, what will happen at his death? Why, 
the trustees will acquire, under the will, the legal ownership of the 
land, while each person to whom any portion of the produce of 
the land is given will acquire an equitable right to have the land 
sold, and his share of the proceeds paid to him, as well as, inci- 
dentally, a right to receive, until the sale is made, the rents and 
profits of so much of the land as his share of the proceeds of the 
sale shall represent. On the other hand, so much of the land as 
shall be represented by the undisposed of proceeds of its sale, 
will descend in equity to the heir, and, when his title to the land 
shall be devested by a sale, he will be entitled to receive in ex- 
change a like proportion of the proceeds of the sale. The per- 
sonal representative will, therefore, have no more to do with the 
testator's land, or with the proceeds of its sale, than he would have 
had to do with the land if the testator had died intestate. All 
this, moreover, is so plain that it seems that the courts must have 
proceeded upon some other theory in holding the contrary. 

Can they have proceeded upon the theory that, as a testator 
can dispose by his will of the proceeds of a sale of land which he 
directs by the same will, so such proceeds, if undisposed of, will 
devolve upon his personal representative? No, clearly not, or at 
least no such theory can be maintained ; for such proceeds have 
no existence till after the testator's death, nor till after a sale is 
actually made, and it is only the property and rights of a person 
which are in actual existence that can devolve at his death on his 

codicil he directed that, on the death of his sister, his land should go, in the events 
which happened, not to A and 6 successively for life, but to them jointly for their 
lives ; and, the question being whether the word " land," in the codicil, included tha 
residue of the testator's personal estate, that being land in equity when the codicil was 
made, Lord Hardwicke answered that it did not, and that it meant the same in the 
codicil that it did in the will, the residue of the personal estate, not, in truth, becom- 
ing land in equity till the testator's death. He said (page 169) : '' It has been insisted 
on for the plaintiif that if a man makes a will and disposes of lands, that such devise 
will pass, not only what the law will pass, but what equity passes likewise, which is 
money directed to be laid out in land. ... I allow that the rule laid down by the 
bar, that money directed to be invested in land, must be considered as land, is very 
right, but then it is truly said the will must be complete, for it is ambulatory till the 
testator's death, nor till then can it be considered as land ; for would not his personal 
estate have been subject to all intents and purposes to his debts, supposing there had 
been any, notwithstanding the devise that the surplus should be invested in land? 
Suppose the testator had given, by his codicil, all his lands to another person, and 
his heirs, can anybody doubt whether this would not have made a total variation as to 
the devisees mider the will?" 



EQUITABLE COfrrBRS/ON. 3 

representatives by operation of law. When a testator by his will 
makes a gift of such proceeds, the gift is future and executory, 
and there is in devolutions of property by operation of law 
nothing analogous to future and executory gifts. 

What other theory is there, then, which the courts may have 
adopted? In framing the question with which the last paragraph 
but one begins, I have used the words " causing the land to de- 
volve in equity," etc., and I have used these words because, first, 
the equitable interest in the land is the only thing that can devolve 
by operation of law in the case supposed ; secondly, the equitable 
interest in the land is the thing that was in fact held to devolve as 
if it were money; thirdly, there are only two possible alternatives, 
as the land must either descend as land to the heir, or it must 
devolve as money upon the personal representative ; and, as it was 
held to do the latter, and as it could so devolve on the supposition 
that it had been directly converted by equity into money, and on 
that supposition alone, it seems that that must have been the 
theory upon which the courts acted. In other words, while an in- 
direct equitable conversion is in truth only a first step towards an 
alienation of the thing to be converted, and a specific performance 
of the contract or trust which causes the conversion is indispen- 
sable to complete the alienation, the courts acted upon the theory 
that such a conversion constituted in itself, at the testator's death, 
a complete alienation in equity of the thing to be converted from 
the testator's heir to his executor, and from his executor to his 
heir, and hence that such a conversion of land was a conversion 
of it, not only as to the executor, but as to the heir as well, and 
that such a conversion of money was a conversion of it, not 
only as to the heir, but as to the executor as well. In short, it 
was held that an indirect conversion, made by will, was an abso- 
lute conversion, in so far as it is possible for equity to make an 
absolute conversion, that land so converted became the absolute 
property of the testator's executor, in so far as it is possible for an 
equitable owner to be an absolute owner, and that money so con- 
verted became the absolute property of the testator's heir or 
devisee, in so far as it is possible for an equitable owner to be an 
absolute owner.^ 

It must not be supposed, however, that courts of equity in thus 
treating indirect equitable conversions as if they were direct, acted 

^ See infra, p. 14 ; p. 20, n. 6. 



4 HARVARD LAW REVIEJV. 

consciously; for in truth they have never recognized the division 
of equitable conversions into such as are direct and such as are 
indirect, but have always assumed that all equitable conversions 
constituted one class only, and have never raised any question 
as to whether they are made directly or indirectly; and hence 
they have, not unnaturally, assumed that the effects produced by 
any equitable conversion will be produced by every equitable con- 
version, and that whatever is true of any equitable conversion is 
true of all equitable conversions. Hence, too, the courts, when 
dealing with an equitable conversion of one kind, have applied to 
it a mode of reasoning which is applicable to equitable conversions 
of that kind or which is applicable only to equitable conversions 
of the other kind, according as the one mode of reasoning or the 
other best supported the view which they were seeking to establish. 
More particularly, however, and for reasons stated in a previous 
article,^ they have been in the constant habit of applying to in- 
direct conversions reasoning which is applicable only to direct 
conversions. 

What were the authorities by which the foregoing view was 
supposed to be established? First, there were the two cases of 
Mallabar v. Mallabar^ and Durour v. Motteux,^ in each of which 
the decision must have been in favor of the next of kin, but for 
the fact that there was a residuary bequest which was held to 
carry everything. There was also the case of Ogle v. Cook,* 
which was supposed by everyone to contain an actual decision in 
favor of the next of kin and against the heir, until Lord Lough- 
borough, fifteen years after Ackroyd v. Smithson was decided, 
declared,^ as the result of an examination of the Registrar's Book, 
that, though the point was involved, it was not actually decided 
by the decree which was made, but was reserved for further con- 
sideration. Lastly, there was the case of Fletcher v. Chapman,^ 
which was the converse of Ackroyd v, Smithson, i. e., the testator 
had directed money to be laid out in the purchase of land, but he 
had disposed of a life interest only in the land to be purchased, 
and (according to Tomlin's head note) it was held by Lord 
Somers, whose decree was affirmed by the House of Lords, that 
the testator's heir was entitled to the money, subject to the life 
interest. Lord Cottenham, however, when Master of the Rolls, 

1 See i8 Harv. L. Rev. 248, 249. * Cas. /. Talbot, 78. 

« I Vea. 320, 1 Sim. & St. 292, n. (d). * i Yes. 177. 

^ Collins V. Wakeman, 2 Ves. Jun. 683. * 3 Bro. P. C, Tomlin's ed., i. 



EQUITABLE CONVERSION, S 

concluded, after a careful examination of the case, that the point 
was not involved, and hence that the decision did not preclude 
him from deciding the point as he thought right.^ On the other 
hand, Digby v. Legard,* which was the latest case cited in Ackroyd 
V. Smithson, having been decided within six years,^ was thought 
to be a very strong authority in favor of the heir and against the 
next of kin, and to be entitled to great weight. It had not, how- 
ever, been reported when Ackroyd v. Smithson was argued and 
decided, nor was there then any statement of it in print. There 
was, indeed, a statement of it by Sir T. Sewell, M. R., in the then 
unreported case of Fletcher v. Ashburner,* and from that state- 
ment it was cited in Ackroyd v. Smithson. According to that 
statement, however, real estate only was devised, and hence the 
case was cited, in Ackroyd v. Smithson, as one which did not 
involve the blending of real and personal estate into one fund. 
When, however, it came to be reported, first by Mr. Cox, in his 
note to Cruze v. Barley ^ and afterwards in Dickens,* it appeared 
that it did involve the element of blending; and therefore, in 
that respect, it was precisely in point for the heir in Ackroyd v. 
Smithson, though it had been supposed not to be so. For another 
reason, however, the report in Dickens shows that the decision 
was not any authority in favor of the heir, or against the next of 
kin, in Ackroyd v, Smithson; for it appears that the reason of 
the decision in favor of the heir was that the land was merely 
charged with the payment of the testator's debts and legacies 
in aid of the personal estate, and that no more of the land was 
directed or authorized to be sold than should be necessary to 
satisfy the charge. The case of Emblyn v. Freeman^ was also 
cited in Ackroyd z/. Smithson as an authority in favor of the heir. 
The facts of that case, however, are not such as to render the 
decision in favor of the heir of much value.^ 

* This opinion was expressed by Sir C. C. Pepys (afterward Lord Cottenham) in 
his judgment in Cogan v, Stephens, decided Nov. 24, 1836. The judgment is given 
in full in an appendix to the first three editions of Lewin on Trusts. The case is also 
reported in 5 L. J. N. s. Chan. 17. 

> 3 P. Wms. 22, n. I ; 2 Dick. 500. 

» Digby V. Legard was decided in June, 1774, and Ackroyd v, Smithson in June, 
178a 

* I Bro. C. C. 497, 501. 

» 3 P. Wms., 4th ed., 22, n. i, published in 1787. Fletcher v, Ashbumer was de- 
cided just a year before Ackroyd v. Smithson. Both cases were first reported by 
Brown in his second edition, published in 179a 

* 2 Dick. 50a Dickens was published in 1803. 

^ Ch. Prec. 541, » See 18 Harv. L. Rev. 87. 



6 HARVARD LAW REVIEW. 

Such, then, are the authorities in support of the view which, I 
have said, prevailed prior to Ackroyd v, Smithson ; and, though 
they are, upon the whole, stronger than they were supposed to be 
when Ackroyd v. Smithson was decided, they can hardly be said 
to be decisive. Whether decisive or not, however, the opinion has 
been universal, since Ackroyd v. Smithson was decided, that, prior 
to that date, the law was as I have stated it to be. 

What, then, was the change introduced by Ackroyd v. Smithson ? 
The testator, in that case, by his will gave all his land, not therein 
before given, and all his personal estate to two trustees in trust to 
sell the same, and, out of the proceeds, to pay the testator's debts 
and pecuniary legacies, including a legacy to each of fifteen persons, 
and to divide the residue among the same fifteen persons in pro- 
portion to their respective legacies. Two of these legatees died 
before the testator, and so the gifts to them lapsed; and, the 
property having been sold, the question was what should be done 
with so much of the money intended for them as was produced by 
the sale of the land. It was claimed by the testator's next of kin 
to belong to them, as having become part of the testator's personal 
estate, and they filed a bill against the trustees to enforce their 
claim, making the thirteen surviving legatees and the testator's 
heir co-defendants. The case was first heard by Sir T. Sewell, 
M. R., who gave the entire fund, /. ^., the produce of the land as well 
as the personal estate, to the thirteen surviving legatees, where- 
upon the plaintiffs appealed, and the appeal was heard by Lord 
Thurlow, who decided in favor of the heir. The latter was repre- 
sented by Mr. Scott (afterwards Lord Eldon ^) who argued the cause 
fully at both hearings. His argument before Lord Thurlow is re- 
ported as written out by himself and furnished to the reporter.^ 
The heir in fact made no claim to the money, but, being a 
necessary party to the suit, he had to be represented by counsel 
at the hearing, and accordingly his solicitor instructed Mr. Scott 
(who was then only twenty-eight years old, and who had been only 
four years at the bar^) to represent him, and consent, on his 
behalf, to whatever decree the court should see fit to make, giving 



1 Lord Eldon gave in a conversation, a little more than three weeks before his 
death, a very interesting account of his connection with Ackroyd v. Smithson. See 
I Twiss, Life of Lord Eldon, 1 16-120. 

« See I Bro. C. C, Belt's ed^ 503, n. i. 

' Lord Eldon tells us that during his first eleven months at the bar he received 
nothing, that during the twelfth month he received half a guinea ; see i Twiss, loa 



EQUITABLE CONVERSION. f 

him a fee of one guinea, that being the established fee for such a 
service. Mr. Scott, however, having satisfied himself that the heir 
was entitled to the money, so advised him, and declined to rep- 
resent him unless he could argue the case ; and the result was that 
he argued it at each hearing without a fee, /. ^., on receiving a fee 
merely for consenting to a decree, the heir declining to increase his 
fee and thus " send good money after bad." ^ 

At the hearing before Lord Thurlow, the counsel for the next of 
kin contended ^ " that the testator had converted his real estate into 
money, out and out, that he had mixed two funds, and made all 
personal estate ; that the cases therefore of Mallabar v, Mallabar 
and Durour v, Motteux must govern the decision here, and that 
the blending the funds distinguished this case from that of Digby 
V. Legard." Mr. Scott also said : ^ "If the interest of the deceased 
legatees had been an interest in the produce of mere real estate, 
not blended with the produce of personal estate, it has been 
admitted, upon both hearings, that the benefit of the lapsed 
devises would, according to the case of Digby v. Legard, and 
the principle of the case of Emblyn v. Freeman, and of many 
others, have accrued to the heir at law. It is admitted, and cannot 
he denied, that where a testator directs real, estate to be sold for 
special purposes, if any of those purposes become incapable of 
taking effect, the heir at law shall take; because there is an end of 
the disposition, when there is an end of the purposes for which 
it was made: — but it is contended here the testator had not a 
special intention, but that he meant the produce of his real estate 
should be considered as personal estate, that he intended to con- 
vert it out and out; that he has not kept the funds distinct, but 
that he has blended them so as to be incapable of being distin- 
guished, and that the cases therefore of Durour v, Motteux, and 
Mallabar v, Mallabar, are authorities in point, that the whole fund 
is personal. — We admit that a person may decide what shall be 
the nature of his property after his death, so as to preclude all 
question between real and personal representatives." Such were 
the views of the counsel for the next of kin, so far as we know 
them, and such were their admissions in favor of the heir and Mr. 
Scott's admission in favor of the next of kin. It was, therefore, 
agreed between them that everything depended upon the testator's 
intention. How, then, was his intention, as to the conversion of his 

1 1 Twiss, ii8. « I Bro. C. C. 505. » i Bro. C. C 506. 



8 HARVARD LAW REVIEW. 

land into money, to be ascertained? According to Mr. Scott, the 
way was, first, to inquire for what purposes he had directed his land 
to be sold, and, secondly, to what extent those purposes had been 
eflfective ; for, as to such purposes, if any, as had failed to take 
effect, Mr. Scott insisted that it was the same as if those purposes 
had never been declared by the testator. He also argued, with 
great force, that the entire burden of proof was on the next of kin ; 
that it was not necessary, therefore, for the heir to show that the 
testator had any intention in his favor, it being sufficient for him 
that no intention had been shown in favor of the next of kin, while 
it was indispensable for the next of kin to show an intention in their 
favor, as their claim had no other foundation to rest upon. 

To the argument which the counsel for the next of kin founded 
upon the blending of the testator's land and personal estate into 
one fund, Mr. Scott made the same answer as to the rest of their 
argument, namely, that the testator intended that the two funds 
should be blended into one only for the purposes of the gifls which 
he had made of the blended fund, and, therefore, only so far as 
those gifts should be effective. 

It will be seen, therefore, that Mr. Scott came very near taking 
what is conceived to be the correct view, namely, that the extent 
to which the testator had converted his land into money in equity 
depended upon the extent to which he had made effective gifts of 
the proceeds of the sale which he had directed, and he never once 
alluded to the testator's direction to sell his land as measuring the 
extent of its conversion in equity. Indeed, he fell short of taking 
the view that the extent of the equitable conversion depended 
wholly upon the extent of the gifte just referred to, only by 
making those gifb the sole evidence of the testator's intention to 
convert, instead of making them the measure of the conversion 
without regard to the testator's intention to convert 

There was one feature of the case, however, which Mr. Scott's 
argument thus far failed to meet ; for, though the proceeds of the 
sale of the land had not all been disposed of, a sale of all the land 
was no less necessary than it would have been if all the proceeds 
of the sale had been disposed of, there being no other way of 
ascertaining what amount of money the thirteen surviving lega- 
tees were entitled to receive; and, though Mr. Scott had very 
skilfully diverted the attention of the court from the question 
whether a sale of all the land was necessary, and had directed it 
exclusively to the consequences to be deduced from the testator's 



EQUITABLE CONVERSION. 9 

tailurc to make an effective gift of all the proceeds of the sale, yet 
upon authority it was the intention of the testator to have the land 
sold, or the existence of a right created by him to have it sold, 
that caused its conversion in equity, and the testator's failure to 
dispose of all the proceeds of the sale was material only so far as 
it showed an absence of such intention, or the non-existence of such 
a right What was the testator's intention, then, in the events 
which had happened, as to the sale of his land ? Clearly it was 
that it should all be sold. To be sure, the evidence of this inten- 
tion was not as direct as it would have been if the testator had made 
an effective gift of all the proceeds of the sale which he directed, 
but it was no less certain. When \ testator creates a trust as to 
land which can be carried into effect only by a sale of the land, the 
law regards it as certain that a sale of the land was intended. It is 
equally clear also that there existed a right, created by the testa- 
tor, to have all the land sold. Indeed, such a right existed in each 
of the thirteen surviving legatees. 

It follows then that, upon authority, there was a complete con- 
version in equity of all the land into money ; and, if so, it also follows, 
from Mr. Scott's own admission, that the next of kin were entitled 
to so much of the proceeds of the sale as would have gone to 
the two deceased legatees if they had survived the testator ; for, 
though in terms he admitted only that a testator " may decide what 
shall be the nature of his property after his death," yet it is by 
means of equitable conversion alone that a testator can decide that 
his land shall, after his death, have the nature of money, or that his 
money shall have the nature of land. Moreover, if a testator can 
do this by any equitable conversion which he can make, the testa- 
tor did it in Ackroyd v. Smithson by the equitable conversion 
which he made. 

How, then, did Mr. Scott deal with the admitted fact that a sale 
of all the land was necessary? The answer is that, in terms, he did 
not deal with it at all, and his reason seems to have been that he 
regarded the fact that all the land had been actually sold as having 
rendered immaterial the fact that a sale of it all was necessary, and 
accordingly he dealt with the former fact instead of the latter. 
How did he deal with it? Simply by insisting that so much of 
the proceeds of the sale as was intended for the two deceased 
legatees was still land in equity. He said : " Money undisposed of, 
arising from the sale of lands, in this court is land ; and, as such, 
the heir claims it Suppose all the fifteen legatees had died in the 



lO HARVARD LAW RE VIEW. 

lifetime of the testator, would it not have been competent to the 
heir at law to have insisted, in equity, that no sale should be made 
of the real estate ? ^ . . . If then, in case all the residuary lega- 
tees had died, the heir could have prevented a sale, — is it to 

^ I Bro. C. C. 507. Lord Eldon also used similar language judicially, more than 
thirty years later in the case of Hill v. Cock, i Ves. & B. 173, in which he said : *' The 
only point, calling for decision under this bill, is whether the money arising from the 
sale of the real estate, which it is not necessary to apply for the only purpose expressed 
in the will, is to be considered real or personal estate. . . . Where real estate is directed 
to be converted into personal, for a purpose expressed, which purpose fails, either 
wholly or partially, in the former case though the estate has been converted, the whole 
produce of that conversion will still boreal estate ; and in the latter, as far as the 
purpose fails, so far the money is to be considered realty, and not personalty. ... So 
much of the residue of this money as arose from real estate, must be considered as 
real and be declared to belong to the heir." Nor was Lord Eldon peculiar in this 
respect. In Green v, Jackson, 5 Russ. 35, 2 R. & M. 238, Sir J. Leach, M. R., said 
(p. 38) : " If a testator directs his real estate to be sold, and the produce to be ap- 
plied for a particular purpose only, and that purpose fails, the money intended for 
that purpose retains the quality of real estate, and belongs to the heir." So also as 
late as 1864 Lord Westbury, when Lord Chancellor, in Moving the judgment of the 
House of Lords in Bective v. Hodgson, 10 H. L. Cas. 657, said (p. 666) : "The decree 
[in Hopkins v. Hopkins, Cas. /. Talb. 44, which had been relied upon by the appellant] 
was governed by an error which then prevailed, namely, that personal property directed 
to be converted into realty was converted for all purposes whatsoever, not only the pur- 
poses of the will, but the purposes of ownership in every form and by every title. 
And accordingly it was held that that conversion would operate for the benefit of the 
heir, although the heir claims in default of disposition in consequence of there being 
no direction given by the will, and cannot by any possibility be made to claim under 
the will. That prevalent error was not corrected until the decision of the case of 
Ackroyd v. Smithson, which decided a point that of necessity involved this as its 
consequence, that conversion must be considered in all cases to be directed for the 
purposes of the will, and is limited by the purposes and exigencies of the will. If 
therefore the real estate be directed to be sold, with a view to a disposition made by 
a will, and that disposition fails, although the real estate has de facto been sold, yet 
the proceeds will retain the quality of real estate, for the purpose of ascertaining the 
ownership, that is, the title of the heir ; although it is true that when you pay it over 
to the heir, in the hands of the heir it has the character of money, and no longer the 
character of real estate. So, in like manner, if money is directed to be invested in 
land, and the land is disposed of by the will, and the money is su invested, but the 
disposition fails, the investment thus made for the purposes of the will has no effect 
in altering the quality of the property ; but the property, even in the shape of lands, 
retains its pristine and original quality of personal estate, for the purpose of determin- 
ing the ownership." The instances also are common in which judges speak of money 
as being land in equity for no other reason than that the heir as such is entitled to 
have it paid to him. The reason for the prevalence of this language seems to have 
been that a notion prevailed that an heir as such cannot be entitled to money unless 
it is land in equity. It is true that money cannot descend to an heir unless it is land 
in equity; but land which has descended to an heir is, of course, as liable to be con- 
verted into money as any other land, and the consequences of its conversion are the 
same as in other cases. 



EQUITABLE CONVERSION. II 

be said that because a sale must be made, he shall not have that 
part of its produce which the objects of the testator's bounty cannot 
take ? It is not true that where it is necessary that a sale should be 
made, to effectuate the testator's purposes which are capable of tak- 
ing effect, that such sale will convert the nature of that part of its 
produce which cannot be applied according to the testator's inten- 
tion." ^ To this it may be answered, first, that Mr. Scott's con- 
tention that the money in question was land in equity, was not at 
all necessary for his case, as the heir had the same right to the 
money after the sale, that he had before the sale to the land which 
the money represented ; ' secondly, the money in question could 
not be deemed land in equity for any purpose. The only way in 
which equity can regard money as land is by converting it directly 
into land, and, as the land in question had been actually converted 
into money by the direction of its owner, equity had no right what- 
ever to reconvert it into land. 

The real difficulty, however (upon authority, for there is no 
difficulty upon principle), lies in the fact, not that the land had all 
been sold, but that its sale had been directed by the testator, and 
to that fact Mr. Scott gave no answer. While, therefore, the 
money in controversy clearly belonged to the heir, Mr. Scott did 
not succeed in proving that it belonged to him ; and, indeed, he 
attempted a feat, the performance of which was impossible, namely, 
to establish his contention by authority. 

What, then, is to be said of Lord Thurlow's decision? From 
Brown's report of the case, one would infer that the decision was 
rendered at the conclusion of the argument, but Lord Eldon tells 
us that " Thurlow took three days to consider "^ before delivering 
his judgment. According to the report he disposed of the case in 
a few informal observations. He said,* *' he fully approved the de- 
termination in Digby v, Legard ; he used to think, when it was 
necessary for any purposes of the testator's disposition, to convert 
the land into money, that the undisposed of money would be 
personalty ; but the cases fully proved the contrary. It would be 
too much to say, that if all the legatees had died, the heir could, as 
he certainly might, prevent a sale ; and yet to say that, because a 

1 Page 508. « See 18 Harv. L. Rev. 4. 

* " Well, Thurlow took three days to consider, and then delivered his jadgment in 
accordance with my speech, and that speech is in print, and has decided all similar 
questions ever since." i Twiss, 119. 

* I Bro. C. C. 514- 



12 HARVARD LA IV REVIEW. 

sale was necessary, the heir should not take the undisposed of part 
of the produce. The heir must stand in the place of the residuary 
legatees who died, as to the produce of the real estate. He said 
he approved the distinctions made in behalf of the heir." It will 
be seen, therefore, that, if Lord Thurlow is correctly reported, his 
original opinion in favor of the next of kin was founded on the 
fact that the purposes of the testator which had taken effect made 
it necessary that all the land should be sold. Why then had he 
abandoned that view? One reason was that he regarded Digby t/. 
Legard as a direct authority against it ; but in that, as we have 
seen, he was in error. Another reason given by him was that, if 
all the fifteen legatees had died before the testator, all the land 
would have gone to the heir, and therefore it followed that, as 
some, but not all, of the legatees had so died, a proportional part 
of the land ought to go to the heir, though a sale of all the land 
would be necessary in the latter case, and none of it in the former. 
In other words, he had become convinced that the rights of the 
heir ought not to depend upon the mere question whether the tes- 
tator's purposes required a sale of the land. It will be seen, there- 
fore, that Lord Thurlow came very near accepting the proposition 
that a testator causes an equitable conversion of his land into 
money, not by directing a sale of it, but by making some effective 
disposition of the proceeds of the sale, and hence that the extent 
of the conversion, if there be a conversion, is in proportion to the 
extent of the disposition of the proceeds of the conversion. He 
did not, however, accept that proposition, but professed to go upon 
authority, and, upon authority, the difference between the effect 
produced by the deaths of all the legatees, and the deaths of some 
of them only, is decisive. Moreover, it is very far from being 
clear, upon authority, that a sale of all the land would not have 
been necessary, even though all the legatees had died before the 
testator.^ Hence both of Lord Thurlow's reasons for changing his 
mind seem to fail. 

Nor do Lord Thurlow*s reasons enable anyone to say upon what 
legal ground he decided in favor of the heir, and therefore all 
that he can be regarded as having decided is that the heir was en- 
titled to the money in controversy. Hence it follows that the 
decision is not properly an authority for any legal proposition, but 
has the authority of a precedent only. As a precedent, however, 

1 See in/ra^ p. 24, proposition 8. 



EQUITABLE CONVERSION. 1 3 

it is an undoubted authority that where a testator directs a sale of 
his land» but dies intestate as to some portion of the proceeds of 
the sale, that portion of the proceeds, or so much of the land as it 
represents, will go to the heir, and not to the next of kin ;^ and 
accordingly Phillips v. Phillips' is the only case, since Ackroyd v. 
Smithson, in which, such a question as the foregoing being in- 
volved, the decision has been in favor of the next of kin ; and 
the decision in that case, after being universally disapproved of for 
twenty-one years, was at length formally overruled by Lord Cran- 
worth in Taylor v. Taylor.* 

Indirectly, however, the decision in Ackroyd v. Smithson was 
the means of establishing rules and distinctions theretofore unheard 
of. For example, after that decision it was no longer true that an 
unqualified direction in a will to sell land caused an absolute con- 
version of the land into money, irrespective of the purposes for 
which the sale was directed, or of the extent to which those pur- 
poses took effect; for, as was said by Sir W. Grant, in Williams v. 
Coade,^ " There could not be a more absolute direction for conver- 
sion than that in Ackroyd v, Smithson " ; and yet it was there held 
that there was not an absolute conversion of all the land, in the 
sense in which the term conversion was then understood, and 
hence there soon came to be a clear distinction between a conver- 
sion " out and out " and a conversion for the purposes of the will 
only. Thus, in 1787, Mr. Cox, in his note to Cruse v. Barley, said* 
the several cases on the subject of equitable conversion ** seem 
to depend upon this question, whether the testator meant to give 
to the produce of the real estate the quality of personalty to all in- 
tents, or only so far as respected the particular purposes of the 
will." Six years later, he added to the above the following:^ 

1 Robinson v, Taylor, 2 Bro. C. C. 589 ; Williams v, Coade, 10 Ves. 500 ; Berry v. 
Usher, 11 Ves. 87; Smith v, Clazton, 4 Madd. 484; Hill v. Cock, i Ves. & B. 173; 
Maugham v. Mason, i Ves. & B. 410 ; Gibbs v, Rumsey, 2 Ves. & B. 294 ; Jessop v, Wat- 
son, I M. & K. 66s ; ^y^ ^- Marsden, 2 Keen 564 ; Williams v, Williams, 5 L. J. (n. s.) 
Ch. 84; Fitch V, Weber, 6 Hare 145; Johnson v. Woods, 2 Beav. 409; Flint v. War- 
ren, 16 Sim. 124; Gordon v, Atkinson, i De G. & Sm. 478; Shallcross v. Wright, 12 
Beav. 505 ; Taylor v. Taylor, 3 De G. M. & G. 190 ; Christian v, Foster, 7 Beav. 540, 2 
Ph. 161 ; Robinson v. London Hospital, 10 Hare 19; Taylor's Settlement, In re^ 9 Hare 
596; Hatfield v. Prime, 2 Coll. 204: Wilson v. Coles, a8 Beav. 215; Bagster v. Fack- 
erell, 26 Beav. 469; Hamilton v. Foot, Ir. R. 6 Eq. 572; Richerson, In re, [1892] i Ch. 
379; White V. Smith, 15 Jur. 1096; Bedford v, Bedford, 35 Beav. 584. 

s I Myl. & K. 649. « 3 De G. M. & G. 19a 

* 10 Ves. SCO, 504. • 3 P. Wms. 4th cd., 22, n. 1. 

• 3 P. Wms. 5th ed., 22, n. I. 



14 HARVARD LAW REVIEW. 

" For unless the testator has sufficiently declared his intention, not 
only that the realty shall be converted into personalty for the pur- 
poses of the will, but further that the produce of the real estate 
shall be taken as personalty, whether such purposes take effect or 
not, so much of the real estate, or the produce thereof, as is not 
effectually disposed of by the will, at the time of the testator's 
death (whether from the silence or the inefficacy of the will 
itself, or from subsequent lapse) will result to the heir." 

On the death of the testator in Ackroyd v, Smithson, only three 
different rights devolved from him relating to his land, namely, 
first, the legal ownership of the land, which devolved upon the 
trustees by the devise to them ; secondly, the equitable ownership 
of the land, which descended to the testator's heir ; and, thirdly, 
the right to have the land sold, i. e,, exchanged for money, and to 
receive the money or some portion of it, with the incidental right 
to receive the rents and profits of the land until the sale was made. 
This third right did not, indeed, in strictness devolve from the 
testator, for it was never in him, but was newly created by his will, 
and not till the moment of his death, and it vested originally in 
each of his thirteen surviving residuary legatees, and in no one 
else. It could not possibly vest in the testator's next of kin, as it 
was not created in their favor. As, therefore, no right was created 
by the will in favor of anyone to receive that portion of the 
produce of the land which was intended for the two deceased 
legatees, it necessarily belonged to the heir, to whom the land 
which it represented belonged when the sale was made. How, 
then, could the notion ever be entertained that the next of kin 
stood in the place of the two deceased legatees? Such a notion, 
as I have already said,^ is intelligible only on the assumption that 
the case was a wholly different one from what it was in fact, 
namely, that that portion of the land, the produce of which was in- 
tended for the two deceased legatees, was, at the moment of the 
testator's death, converted directly into money by equity itself, and 
hence, being undisposed of, it belonged to the next of kin. It will 
be seen, therefore, when the question is considered according to 
the truth of the case, that the right of the heir did not depend 
upon whether that portion of the land, the produce of which was 
intended for the two deceased legatees, had been converted by the 
will into money in equity. The only difference was that, if it had 

1 See jw/nx, p. 3. 



EQUITABLE CONVERSION. 1$ 

not been so converted, it not only devolved in equity upon the 
heir, but was land in his hands until it was actually sold, while, if 
it was so converted, though it still devolved upon the heir, yet he 
took it as money, and hence, if he had died the day after the 
testator it would have gone to his personal representative. 

The courts, however, seem to have thought the question be- 
tween the heir and the next of kin depended upon whether there 
had been an equitable conversion or not, and that the latter ques- 
tion was purely a question of the testator's intention ; that accord- 
ingly, in Ackroyd v. Smithson, if the testator intended to convert 
all his land into money, the next of kin were entitled to stand in 
the place of the two deceased legatees, but that, if the testator 
intended a conversion only coextensive with the disposition which 
he had made of the proceeds of the sale, the heir was entitled to 
stand in the place of the two deceased legatees. Thus far, there- 
fore, there was no conception of the idea of an heir's taking land 
by descent, and yet taking it as money, the idea being that the 
heir took it, if it was land in equity, and the next of kin, if it was 
money. In Robinson v, Taylor,^ however, decided in 1789 (nine 
years after Ackroyd z/. Smithson), Lord Thurlow started the idea^ 
that the heir must take unless the testator showed an intention, 
not merely that the land should be converted, but that its conver- 
sion should take effect as from a date prior to the testator's death, 
it being assumed that the testator's power to make such a conver- 
sion was free from doubt. This idea, moreover, has since exerted 
a great influence, particularly in preventing testators from so con- 
verting their land into money as to cause it to devolve upon their 
next of kin. It soon had the effect, also, of establishing the dis- 



1 2 Bro. C. C. 589. 

' Lord Thurlow said (p. 594) : " The difficulty is to find that an unsold residue of 
real estate can, by any means, go from the heir at law. Inferences have been ad- 
mitted, where the testator has not expressed himself clearly, to show that he meant to 
convert the real into personal estate. If it is once deemed sufficient that he meant 
it to be turned into money, to make it the same as if it had been money before his 
death, then you will have the testator declaring that he did so. In all the cases, it has 
been, where he meant it to be converted, out and out, that the testator meant it should 
become money, but the question is whether he meant it to be the same as if it had 
been money before his death. It has not been held to be part of the personal estate, 
but to be disposed of as if it was part of the personal estate. The heir at law is en- 
titled to the residue as a resulting fund. ... I do not see how the personal represen- 
tative can ever get at that which was not personal at the death of the testator, but by 
an express direction — therefore, I think the heir at law, here, is entitled to the residue 
of the real estate as a resulting fund." 



l6 HARVARD LAW REVIEW. 

tinction between an heir's taking land as land and taking it as 
money ; for, if a testator showed an intention to convert his land 
into money, but not so to convert it as to carry it to the next of 
kin, it followed that it must go to the heir, and yet he could take 
it only as money, as it would be converted into money in equity 
immediately on the testator's death. Suppose, however, it should 
turn out that, while Lord Thurlow's idea was adhered to in other 
respects, a testator had no power so to convert his land into 
money by will that the conversion would take effect before his 
death. Of course the consequence would be that the heir would 
take, whether there was an equitable conversion or not, taking the 
land as land if there was not an equitable conversion, and taking 
it as money if there was. Moreover, that was virtually what hap- 
pened. Thus, in Sheddon v. Goodrich,^ where a testator, by a will 
attested by three witnesses, had directed his land to be sold, and 
had made a disposition of the proceeds of the sale, it was held by 
Lord Eldon that he could not by a subsequent will, attested by 
two witnesses only, change such disposition; and in Hooper v. 
Goodwin,^ where land was directed by will to be sold, it was held 
by Sir W. Grant, M, R., that the produce of the sale could not 
be disposed of by an unattested codicil ; and, in neither of these 
cases was any inquiry made as to the time when the testator in- 
tended the equitable conversion of his land should take effect 
After these decisions, therefore, it seems to have been impossible 
to contend that any equitable conversion by will could take effect 
before the testator's death. Accordingly, in the well-considered 
case of Smith v. Claxton,' where a testator made two separate 
devises of two parcels of land in trust to be sold for purposes 
which totally failed, as to the land first devised, and which par- 
tially failed, as to the land secondly devised, and the testator's heir 
died soon after the testator and before either parcel of land was 
sold. Sir J. Leach, V. C, held that, in the events which had hap- 
pened, the testator did not intend to convert the parcel of land 
first devised, and hence it descended in equity to the heir, and he 
took it as land ; but that he did intend to convert the entire inter- 
est in the land secondly devised, a sale of the entire interest being 
necessary for the purpose which had taken effect, and, therefore, 
though the undivided half of the land, as to which the purpose 
of the sale had failed, had descended to the heir in equity, the 

1 8 Yes. 481. « iS Yes. 156^ « 4 Madd. 484. 



EQUITABLE CONVERSION. 1 7 

equitable conversion of it not coming in time to intercept its de- 
scent to him, yet the heir took it, not as land, but as money. So 
also, fourteen years later, in the case of Jessopp v. Watson,^ where 
the testator devised his land in trust to be sold for the payment 
of his debts, legacies, and annuities, and also for other purposes 
which totally failed, the same learned judge, then Master of the 
Rolls, held that, in the events which had happened, the testator 
intended that the land should be sold, namely, for the purposes 
which had taken effect, and, therefore, though the land had de- 
scended to the heir, subject to debts, legacies, and annuities, yet 
he took it as money.' 

The fact that land directed by a will to be sold, will descend to 
the testator's heir, so far as the proceeds of its sale are not other- 
wise disposed of, notwithstanding that the land has been entirely 
converted in equity by the will, proves also that the testator's next 
of kin can never derive any benefit from land so directed to be 
sold, unless the will contain a direct gift to them. This latter 
proposition is, moreover, also directly established by authority. 
Thus, in Jarman on \A^lls,' the learned author, after quoting that 
portion of Mr. Cox's note to Cruse v. Barley which was published 
in 1787,* says: "There seems to be no ground to except to this 
statement of the doctrine, provided that, by an intention to give to 
real estate the quality of personalty ' to all intents ' we are allowed 
to understand something very special and unequivocal, amounting 
in effect, not merely to a disposition of the fund as personalty to 
the legatees named in the will, but to an alternative gift to the 
persons entitled by law to the personal estate, in the event of the 
failure of the intended disposition. Unless such an interpretation 
be given to the terms of this proposition, it must, however respec- 
table the authority from which it proceeded, be pronounced to be 
not strictly accurate ; at all events, it is not an explicit statement 
of the rule, and requires, it is conceived, in order to be a safe 
guide in its application, the following explanatory addition, ' But 
that every conversion, however absolute in its terms, will be 

1 I Myl. & K. 665. 

* I thall endeavor to show hereafter that there was, in truth, no equitable conver- 
sion in Jessopp v. Watson, whatever the testator's intention may be supposed to have 
been in regard to a sale of the land, as the debts, legacies, and annuities, for the 
payment of which alone a sale was to be made, constituted only a charge on the 
land. See also 18 Harv. L. Rxv. 85-93. 

* Vol. I., 1st ed., p. 558, published in 1843. 

* See sti^a, p. 13. 

a 



18 HARVARD LAW REVIEW. 

deemed to be a conversion for the purposes of the will only, unless 
the testator distinctly indicates an intention that it is, on the failure 
of those purposes, to prevail as between the persons on whom the 
law casts the real and personal property of an intestate, namely, 
the heir and next of kin/ " So also, in the very carefully con- 
sidered case of Fitch v, Weber,^ Wigram, V. C, said : " The next 
of kin are claiming property of the testator, which at his death 
was real estate, and, in order to substantiate that claim they must 
make out from the will that they are devisees of the property ; 
not being mentioned in the will, they must make out a devise by 
implication, — which might be sufficient, although Lord Thurlow, 
in Robinson v. Taylor, has said he ' did not see how the personal 
representatives could get at that which was not personal estate at 
the death of the testator but by express words.' The law is to 
some extent clear upon authority ; a devise upon trust to sell and 
convert real estate into money is, in some sense, a direction to turn 
real into personal estate, but it is clear that such a devise will not 
necessarily entitle the next of kin to claim any portion of the pro- 
ceeds of the sale of real estate which, by the terms of the will or 
in event, is or becomes undisposed of The will in that case may 
determine the quality in which the property will devolve upon 
those who take it, but is silent as to the persons upon whom it 
shall devolve. The testator clearly means the real estate to be- 
come money after his death, but (as Lord Thurlow said in the case 
referred to) the question is, whether he means it to be the same 
as if it had been money before his death. ... In the simple case 
of a devise upon trust to sell, and no trust of the surplus declared, 
it has apparently been thought by some text-writers that the court 
would be driven to imply a trust for the next of kin; but that 
has never been so decided, and if ever such a case should call for 
decision, it may deserve much consideration. However clear, in 
such a case, it may be that the testator means his real to be treated 
as personal estate after his death, the question remains, does he 
mean it to be treated also as if it had been personal estate before 
his death? — that (as Lord Thurlow observed) is the question." 
In Johnson v. Woods,* also. Lord Langdale, M. R., said : *' It is 
undoubtedly practicable for a testator to say that his real estate 
shall be sold, and that the produce shall go to such persons as are 
by law entitled to his personal estate. When, therefore, it can be 

1 6 Hart 145, 147. ■ 2 Beav. 409, 413. 



EQUITABLE CONVERSION. 19 

ascertained that a testator intended that the produce of real estate 
should, to all intents and purposes, be treated as personal estate 
possessed by him at his death, so as to devolve upon the person 
entitled to his personal estate, the court will give effect to that 
intention." In Flint v. Warren,^ Shadwell, V. C, said: "The 
testatrix has directed her real estates to be sold, and the net 
proceeds to form part of her personal estate ; but she has not 
made any gift of that part. As then it is not given away, there 
is nothing to take it from the heir." In Taylor v, Taylor,^ Lord 
Chancellor Cranworth said : ** The law gives the estate to the heir 
notwithstanding the direction of the testator, unless the testator 
makes a valid devise of it otherwise. Of course I do not mean 
to say that a testator might not so dispose of the proceeds of real 
estate as to make it go to the next of kin. ... In that case the 
next of kin would take, because there would be an express gift to 
them by the testator, but not as an interpretation of words of 
direction, such as we have here." In the cases cited in the note,' 
in which it was also held that the testator's land was converted 
in equity into money by the will, and, therefore, that the heir took 
as money that portion of the land the produce of which was not 
disposed of, if the first proposition is correct, the second necessarily 
follows. 

Upon the whole, therefore, it may now be considered as clear, 
upon authority as well as upon principle, that it is not possible 
for a testator so to convert his land into money by will, that upon 
his death it will devolve, by operation of law, upon his personal 
representative or next of kin, and, therefore, Mr. Scott's admission, 
in Ackroyd v. Smithson, " that a person may decide what shall 
be the nature of his property after his death, so as to preclude all 
question between real and personal representatives," * is no longer 
true in its full extent.* It is still true, however, upon authority, 

^ 16 Sim. 124, 129. 

« 3 De G. M. & G. 190, 197. 

* Hatfield v. Prime, 3 Coll. 304; White v. Smith, 15 Jur. 1096; Taylor's Settle- 
ment, In re^ 9 Hare 596; Bagster v. Fackerell, 26 Beav. 469; Wilson v. Coles, 28 
Beav. 215; Attorney General v. Lomas, L. R. 9 Exch. 29; Hamilton v. Foot, Ir. R. 6 
£q. 572 ; Richerson, In re, [1892] i Ch. 379. For comments on the foregoing cases, 
see infra, p. 26. 

* See supra, p. 7. 

* And yet, as late as 1833, Sir John Leach, M. R., in Jessopp v. Watson, i Myl. & K. 
665, says (674) : *' A testator may, if he pleases, direct that the produce of his real 
estate which he orders to be sold, shall, in all events and for all purposes, be con- 
sidered as if it had been personal estate at his death." 



20 HARVARD LA IV RE VIE IV. 

that a testator may by his will convert his land into money, not 
merely for the purposes of his will, but ** out and out/' though 
the consequence of his so doing will not be the same as formerly, 
i.e., instead of causing the land to devolve upon the personal 
representative, its only effect will be to cause the heir to take as 
money so much of the land as descends to him. It may be added 
that, as it is no longer true, even upon authority, that a testator 
can so convert his land by will as to cause it to devolve, by opera- 
tion of law, upon his personal representative, so it ought to be 
no longer true, upon authority, that a testator can so convert his 
land into money by will as to cause it to devolve, by the same 
will, as personal estate, unless it appears on the face of the will 
that the testator intended " personal estate " to include the produce 
of land directed by the will to be sold.^ 

That it is still true, upon authority, though not upon principle, 
that a testator may by his will convert his land into money " out 
and out," — a slight glance at the authorities will sufficiently 
prove. Thus in Berry v. Usher,' decided twenty-five years after 
Ackroyd v. Smithson, Sir W. Grant, M. R., said: "If the char- 
acter of personal estate was imposed upon the real estate to all 
intents and purposes, the mere appointment of an executor would 
be sufficient to carry that property to him, either for his own 
benefit, or as trustee for the next of kin." This shows that that 
learned judge then held the law to be as it was admitted to be 
by Mr. Scott in Ackroyd v. Smithson; and Wright v. Wright • 
shows that he still held the same opinion four years later. And 
yet the opinion thus expressed seems to be inconsistent with 
the decision of Lord Eldon, in Sheddon v. Goodrich,^ made 
more than two years before Berry v. Usher was decided. So 
also in Hill v, Cock,^ decided in 1813, Lord Eldon, in holding 
that the heir, and not the next of kin, was entitled to the un- 
disposed of produce of land directed by the testator to be sold, 
treated the question as being purely one of intention, notwith- 
standing his own decision in Sheddon v. Goodrich, and Sir W. 
Grant's decision in Hooper v, Goodwin.^ In Attorney General 

1 See 18 Hakv. L. Rev. 97-101. 

« II Vc8.87,9i. » i6Ve8. 188. 

« 8 Ves. 481. » I Ves. & B. 173. 

^ For some reason which I have been unable to discover, Sheddon v. Goodrich 
and Hooper v. Goodwin have exerted much less influence over subsequent decisions 
upon equitable conversion than, as it seems to me, they ought to have exerted. They 
have seldom been cited to prove that a testator cannot by his will so convert his land 



EQUITABLE CONVERSION. 21 

V. Holford,^ decided in 1815, where a testator devised an interest 
in land in trust to be sold for purposes which wholly failed, the 
court held that there was a conversion of the land " out and 
out," and yet that it did not devolve in equity upon the per- 
sonal representative, but upon a residuary devisee, who, how- 
ever, took it as personal estate, Thomson, C. B., saying, if such 
devisee had died immediately after the testator, the land would 
have gone to his personal representative. In Bunnett v. Foster^ 
Lord Langdale, M, R., said : " There is no sufficient reason for 
holding that a conversion out and out was intended. Unfortu- 
nately this is a very vague expression. But the case of the 
heir does not require it to be laid down that there can in no 
case be a conversion, except for the purposes of an express 
trust. It is sufficient to say no intention is shown to convert 
for any other purposes than those specifically pointed out, and 

into money as to cause it to devolve by operation of law upon his personal represen- 
tative ; and yet they seem to me to constitute the only proof of that proposition of 
which the courts could avail themselves consistently with the views upon equitable con- 
version to which they have constantly adhered. Nor is either of these cases cited once 
by Jarman in his chapter on equitable conversion, i Jarman, ist ed., c. xix. 

While reading the proof of this article, a reason has occurred to me why Sheddon 
ff. Goodrich and Hooper v, Goodwin have been so little cited in connection with 
equitable conversion, namely, that the courts never held that equitable conversion cre- 
ated by will took effect prior to the testator's death (see Beauclerk v. Mead, mpra^ 
p. I, n. 3), and, therefore, the decisions in Sheddon v. Goodrich and Hooper v. Good- 
win respectively threw no new light upon the question when such conversions take 
effect. In fact, my difficulty arose from my not applying here what I said at the begin- 
ning of this article, when attempting to explain the theory upon which the courts held, 
prior to Ackroyd v, Smithson, that land converted in equity into money by will, de- 
volved, at the testator's death, upon his executor, if not otherwise disposed of, namely, 
not because they supposed the conversion took effect prior to the testator's death, but 
because they erroneously assumed that the conversion consisted in a fictitious trans- 
mutation of the land into money by equity itself, and hence they concluded that the 
testator's heir or devisee, on whom the land devolved at the moment of the testator's 
death, became, at the same moment, a trustee for his executor. See supra^ p. 3. 

If the courts had borne in mind from the beginning that what a testator docs, when 
he is said to convert his land into money by will, is to direct the land to be exchanged 
for money, at the same time creating in some person a right to have the exchange 
made by giving him some of the money to be received in exchange, or some interest 
in such money, and that the equitable conversion is coextensive only with the right or 
rights so created, the view which prevailed prior to Ackroyd v, Smithson could never 
have come into existence, and if Lord Thurlow, when he decided Ackroyd v. Smithson. 
instead of temporizing as he did, had exposed and rooted out the misconception and 
error upon which the then existing view was founded, he would have rendered an 
incalculable service to the English-speaking world. 

» I Price 426. « 7 Beav. 540, 543. 



22 HARVARD LAW REVIEW. 

which have failed." In White v. Smith ^ a testator devised land 
in trust for his son for life, and then in trust for sale, the pro- 
ceeds, after payment of legacies, to be invested, and the income to 
be applied to the maintenance of the children of said son, each 
child to receive his share at twenty-one ; and the son having died 
unmarried, and the land not having been sold, Knight-Bruce, V. C, 
declared the trust for sale to be absolute and unconditional, and 
hence the land to be converted into money in equity, without 
reference to the disposition of the proceeds of the sale, and, 
therefore, the heir took the same as money. In Wall v. Colshead,^ 
a testator devised life estates in certain lands, at the termination 
of which he devised the same to his executors to be sold, and the 
proceeds, divided among the children of the tenants for life, — 
who, however, died without issue, and the court held that the 
land was converted into money " out and out," and, therefore, 
though it went to the testator's residuary devisees,* yet they took 
it as money. Knight-Bruce, L. J., said: "I think the trust for 
sale was not conditional but absolute." Turner, L. J., said : " The 
question is whether the testator intended a conversion out and out, 
or only for the purpose of division between the children of the 
tenants for life. On the death of a tenant for life, leaving children, 
all of whom were under twenty-one, the trust for sale would arise, 
though the shares of the children would not be indefeasibly vested. 
By the clause immediately following the residuary gift in the will, 
if a tenant for life died under twenty-one, there was to be a sale 
for the benefit of other persons than the children of the tenant 
for life so dying. Therefore the testator has shown that he did 
not intend to limit the conversion to the case of there being chil- 
dren of the tenant for life of each property, and the trust for con- 
version not being limited to that event, I do not see how to limit 
it." It will be seen, therefore, that the court treated the question 
whether the conversion was " out and out " or only for the purposes 
of the will, as depending entirely upon the testator's intention 
as to the circumstances under which the property should be sold. 
Lastly, in Attorney General v, Lomas,* where a testator devised 
his lands to trustees in trust to be sold, but the purposes of the 
sale failed, the court held that the trust for sale was absolute, 
whether any effective disposition was made of the proceeds of the 

1 15 Jur. 1096. a 2 Dc G. & J. 683. 688, 689. 

* See comments on Attorney General v, Holford, sft/ra, p. 37. 
< L. R. 9 Exch. 29. 



EQUITABLE CONVERSION. 23 

sale or not, 1. ^., that the land was converted into money " out 
and out/' and, therefore, though it went to the heir, she took it 
as money. 

What, then, are the changes which the authorities show to have 
taken place, in respect to the equitable conversion of land into 
money by will, since Ackroyd v, Smithson was decided? 

1. As to what constitutes such equitable conversion there has 
been no change. It is, and always was held that the equitable 
conversion of land into money by will is caused by the declared 
intention of the testator to have his land sold after his death ; and 
this intention may be declared by directing something to be done 
with the land which will render a sale of it necessary. 

2. Prior to Ackroyd v, Smithson evidence of such intention 
seems to have been looked for only in such directions as the will 
contained respecting a sale of the land, and the mode of dealing 
with and managing the proceeds of the sale prior to, or indepen- 
dent of, any gift of the latter, while, since Ackroyd v. Smithson was 
decided, such evidence has been primarily looked for in the gift or 
gifts which the testator makes of the proceeds of the sale ; and, as 
evidence of an intention to have the land sold, a gift which does 
not take effect is regarded as no gift. 

3. In the absence of evidence to the contrary it will be pre- 
sumed that the testator intended to have so much only of the land 
sold as his effective gifts of the proceeds of the sale shall render 
necessary, and hence so much of the land only will be converted 
in equity, — a rule, however, which had no existence prior to 
Ackroyd v. Smithson. 

4. Prior to Ackroyd v. Smithson, as no attention was paid to a 
testator's purpose or object in directing a sale of his land, and 
hence a direction to sell for one purpose was treated as a direction 
to sell for all purposes, so a direction to sell for any purpose was 
regarded as causing an equitable conversion for all purposes. 
Since Ackroyd v. Smithson, however, the doctrine has become 
established that an equitable conversion by will is presumptively 
coextensive only with the purposes for which the sale is directed, 
and hence the distinction has become established between an equi- 
table conversion for the purposes of the will only, and an equitable 
conversion *' out and out " ; and as the presumption is that a tes- 
tator intends the land to be sold only for the purposes which he 
expresses in his will, so the presumption is that he intends to create 
an equitable conversion for the purposes of his will only. 



24 HARVARD LAW RE VIE IV. 

5. It has always been held that a direction by a testator in his 
will to sell his land at all events will be valid and binding, whether 
he make a gift of the proceeds of the sale, or of any part thereof, 
or any interest therein, or not. While, however, prior to Ackroyd 
V. Smithson any unqualified direction to sell was presumed to be a 
direction to sell at all events, since that case such a direction is 
presumed to be a direction to sell only for the purposes expressed 
in the will, i. ^., only to such extent as the gifts which are made of 
the proceeds of the sale shall render necessary, and hence to cause 
an equitable conversion only to the same extent. 

6. While it has always been held that a testator could by his will 
require his land to be sold at all events, and could thus convert it 
into money in equity ** out and out," yet a conversion " out and 
out " has meant less since Ackroyd v. Smithson than it did before ; 
for, while such a conversion before Ackroyd v. Smithson caused 
any portion of the land the produce of which was not disposed of, 
to go to the testator's personal representative, it now has merely 
the effect of causing the heir to take the same as money. 

7. But, while the authorities clearly show that the effect pro- 
duced by a conversion of land into money in equity has undergone 
the change indicated in paragraph 6, they give no satisfactory 
reason for such change, though the true reason seems to be that 
the courts now recognize the fact, as they did not prior to Ackroyd 
V. Smithson, nor till long afterwards, that an equitable conversion 
of land by will can never come in time to intercept the descent of 
the land to the testator's heir. 

8. The authorities show that, except so far as the contrary is 
indicated in paragraph 7, the intention of the testator is still as 
supreme in respect to equitable conversions by will as it ever was, 
and I am, therefore, now prepared to give an answer to the ques- 
tion with which my last article concluded,* namely, what is, upon 
authority, the measure of the extent of the equitable conversion of 
land into money caused by a will? And the answer is that the 
only measure of such a conversion is the intention of the testator 
as to the sale of the land ; for it is held that a testator can by his 
will convert his land into money without making any gift of the 
proceeds of the sale of such land, and consequently without creat- 
ing any right in anyone to have the land sold, and though a sale 
of the land will leave the ownership of the proceeds of the sale 
where the ownership of the land was when the sale was made. 

1 See 18 Harv. L. Rev. 270. 



EQUITABLE CONVERSION. 2$ 

g. In spite of what is said in paragraph 8, it has always been 
assumed, and within a recent period has been held,^ that a direc- 
tion to sell is a sine qua non of every equitable conversion of land 
by will. Moreover, it has always been held that a conditional 
direction to sell land can cause no equitable conversion until the 
condition is satisfied ;^ and the same is true of a direction to sell 
which is not intended to be imperative,' i. ^., that it can cause no 
equitable conversion. A testator may, however, make his direction 
to sell his land as absolute and as imperative as he pleases, and yet, 
if he makes no gift of the proceeds of the sale, his direction to sell 
cannot be enforced ; still less can it be specifically enforced. In 
short, we are told that a trust for sale is a sine qua non of every 
equitable conversion by will, and yet that there need be no cestui 
que trusty nor any power of enforcing the trust. It would seem, 
therefore, that the courts would have been more consistent if they 
had held intention alone to be sufHcient to create an equitable 
conversion by will, though, in that case, consistency would be the 
only virtue that could be attributed to them. 

ID. On the whole, if regard be had to authority alone, the 
differences between the law as it stands to-day and as it stood prior 
to Ackroyd v, Smithson in respect to equitable conversion by will, 
are much less than they have generally been supposed to be ; nor 
ought this to be a matter of surprise to anyone who reflects that 
neither the counsel for the successful party in Ackroyd v. Smith- 
son, nor the judge who decided that case, founded their argument 
upon anything else than the intention of the testator and the exist- 
ing authorities. 

Nothing has hitherto been said as to the influence exerted by 
Ackroyd v. Smithson upon the equitable conversion of money into 
land by will, and not much need be said. The question whether 
the change effected by Ackroyd v, Smithson, as to the conversion 
by will of land into money, should be extended by analogy to the 
equitable conversion by will of money into land, arose, for the first 

^ Hyett V, Mekin, L. R. 25 Ch. D. 735. 

* Taylor's Settlement, In re, 9 Hare 596; Hardy, Ex parU^ 30 Beav. 206; Raw, 
In n, L. R. 26 Ch. D. 601. 

' Stamper z/. Millar, 3 Atk. 212 ; Doughty v. Bull, 2 P. Wma. 320. It seems to have 
been generally supposed that a conditional direction to sell land, or a direction which 
is not intended to be imperative, does not cause an equitable conversion because it 
does not show an intention to have a sale made at all events ; but the true reason 
seems to be that such a direction creates no right to have a sale made, and imposes 
no obligation to make a sale. 



26 HARVARD LAW REVIEW. 

time, fifty-six years after Ackroyd v. Smithson was decided,* in the 
case of Cogan v, Stevens,^ and was decided in the affirmative by 
Sir C. C. Pepys, M. R. (afterwards Lord Cottenham), notwith- 
standing an apparent decision to the contrary^ by Lord Somers 
and the House of Lords; and his decision has since been 
followed.* 

As the cases cited in this article have been considered almost 
wholly from the point of view of authority, it may not be out of 
place to make a few remarks upon some of them from the point 
of view of what is conceived to be principle. Thus, in Ackroyd v. 
Smithson, there was, upon principle, no equitable conversion of 
that portion of the land the produce of which was intended for the 
two deceased legatees, as there was no one who had a " right " to 
have that portion of the land sold, and to receive the proceeds of 
its sale ; nor can there ever be an equitable conversion in favor 
of the person who makes such conversion, or in favor of his heir as 
such. Therefore, that portion of the land descended in equity, 
at the testator's death, to his heir, in whose hands it was land until 
its actual sale, when it became money for all purposes.^ The same 
is also true in Robinson v. Taylor,® and Williams v, Coade.' In 
Wright V. Wright,® also, there seems to have been no equitable 
conversion, except, possibly, in favor of the testator's wife for her 
life, and, therefore, the land ought to have been held to have de- 
scended in equity, at the testator's death, to his heir, subject to the 
testator's debts and to the life interest of his wife. In Smith v. 
Claxton,* there was, for the reason already stated, no equitable 
conversion as to the testator's heir as such, and, therefore, it was 
erroneously held that he took as money the one-half of the land 
secondly devised as to which the purpose of the devise had failed. 
In Hill Vn Cock*® it seems there was no equitable conversion, the 
land having merely been charged with debts and legacies.** The 

1 This may serve to remind the reader that, since Ackroyd v. Smithson, equitable 
conversions by will of money into land have been infrequent, as compared with 
equitable conversions of land into money. 

s I Beav. 482, n. See also supra, p. 5, n. I. 

« Fletcher v. Chapman, 3 Bro. P. C, Tomlin's ed., I. 

* Reynolds V. Goodlee, John, 536, 582; Curteis v. Wormald, 10 Ch. D. 172. Sec 
also, 18 Harv. L. Rev. 14-19. 

* Sc« 18 Harv. L. Rev. 5, 6. 

* 2 Bro. C. C. 589; and see 18 Harv. L. Rev. 6. 

T 10 Yes. 500. • 16 Ves. 188. 

» 4 Madd. 484- *° I Ves. & B. 173. 

n I shall hereafter endeavor to show that a direction to sell land, whether by will or 



EQUITABLE CONVERSION. 2/ 

same is also true of Maugham v, Mason,^ except that the land was 
there charged with legacies only. In Attorney General v, Hol- 
ford,^ the correct view would seem to have been that as all the 
purposes of the sale failed, the trust for conversion also failed, 
and, as there was no equitable conversion of the land, that conse- 
quently the equitable ownership of the land, the legal ownership 
of which vested in the trustees, either descended to the heir, or 
passed to the residuary devisee. Under no circumstances can a 
residuary devisee, as such, acquire a right to have land sold, and 
to receive the proceeds of the sale, or any part of such proceeds.* 
In Jessopp V. Watson ^ there was no equitable conversion, as the 
purposes of the sale all failed, except the payment of debts, lega- 
cies, and annuities, and the latter constituted a mere charge.* For 
the other reasons already given also, there was no equitable con- 
version as to the testator's heir, and, therefore, the latter took the 
land as land. In Phillips v, Phillips ® it was erroneous to hold that 
the one-fifth of the land the produce of which was intended for 
the deceased brother, went to the testator's next of kin ; if for no 
other reason, because there was no equitable conversion of that 
portion of the land. The same is also true, mutatis mutandis, of 
Fletcher v. Chapman J In Flint v, Warren ® it seems clear that 
there was no equitable conversion of the land into money, as the 
will merely charged the land with the payment of the testator's 
debts and legacies in aid of the personal estate, and it appeared 
that the latter was abundantly sufficient to pay them all.^ In 
Shallcross v. Wright,^^ also, the land was merely charged with 
debts and legacies, and, therefore, there was no equitable conver- 
sion of it into money. In Hatfield v. Prime *^ the testator's heir 
took as land that portion of the land the produce of which had 
not been effectively disposed of, there having been no equitable 
conversion of it into money, nor, indeed, any equitable conversion 
of any of the land as to the testator's heir. In Wilson v. Coles ^ 

by deed, for the mere purpose of satisfying a charge or charges thereon, never causes 
an equitable conversion. And see i8 Harv. L. Rev. 83-93. 
I I Ves. & B. 410. See also 18 Harv. L. Rev. 20, n. 3. 

• I Price 426. 

• See 18 Harv. L. Rev. 94, 95. * i Myl. & K. 665. 

• See supra, p. 26, n. 11. • i Myl. & K. 649. 

^ 3 Bro. P. C, Tomlin's ed., I. ' 14 Sim. 554 ; 16 Sim. 124. 

• See supra^ p. 26, n. 11. 

12 Beav. 505. See also supra, p. 26, n. 11. 
" 2 Coll. 204. M 28 Beav. 215. 



28 HARVARD LAW REVIEIV. 

there was no equitable conversion of the land, except as to the 
wife, and even, as to her, there was an equitable conversion for her 
life only. On the testator's death, therefore, the land immediately 
descended to his two co-heirs, subject to the wife's life estate, and 
when one of the co-heirs died, her share went to her heir, and was 
land in the hands of the latter until its actual sale, when it became 
money for all purposes.^ In Attorney General v. Lomas,' no 
right was created in any one to have the land sold, and, therefore, 
there could be no equitable conversion. Nor could there be any 
equitable conversion in favor of the testator's heir, even if there 
were one in favor of others. In Hamilton v. Foote * the testator's 
land descended at her death to her heir, subject only to the life 
estate devised to the testator's sister, and to the two legacies of 
;^500 each. There was no equitable conversion of any of the land 
as to any person, nor could any of the land be sold, if the heir 
chose to pay the two legacies, nor could any more be sold, under 
any circumstances, than enough to pay those legacies. In In re 
Richerson * there was no equitable conversion of the testator's land, 
except as to the tenants for life respectively, and, even as to them, 
only to the extent of their respective life interests. At the testa- 
tor's death, therefore, the land descended to his sister and heir, 
subject, however, to the life interests and to the right of the respec- 
tive tenants for life to have the land sold. As to so much of 
the land as was actually sold between the testator's death and the 
death of the sister, the latter's title to the land was devested by the 
sale, she acquiring a title to the purchase-money instead, and, on 
the death of the sister, so much of the land as remained unsold 
descended to her heir, and the produce of what had been sold 
devolved upon her personal representative, and, as to so much of 
the land as was sold between the sister's death and the death of 
the surviving tenant for life, the title of the sister's heir to the land 
was devested, and he acquired a title to the purchase-money 
instead. In Wall v, Colshead,^ the purposes of the sale having all 
failed, there was no equitable conversion of the land, and the latter 
passed, at the testator's death, to his residuary devisees, who took 
it as land, though subject to the life interests of the tenants for life. 
So also, in White v, Smith,^ the purposes of the sale all failed, and 

1 See i8 Harv. L. Rev. 6. < L. R. 9 Ezch. 29. 

» It. R. 6 Eq. 572. * [1892] i Ch. 379. 

* 2 De G. &. J. 68 J. See also su^, p. 22. 

* 15 Jur. 10961 See supra^ p. 22. 



EQUITABLE CONVERSION. 29 

hence the land descended to the testator's heir, who took it as 
land, though subject to legacies. In In re Taylor's Settlement,^ 
a testator devised his land in trust to be sold, and its produce 
divided among his seven children, and one of the children having 
died before the testator, it was properly held that the one-seventh 
of the land, the produce of which was intended for the deceased 
child, went to the testator's heir, but improperly held that the 
latter took it as money .^ 

C. C, LangdelL 
Sept. 1905. 

^ 9 Hare 596. Bagster v. Fackerell, 26 Beav. 469, is subject to the same observa- 
tions ms Taylor's Settlement, In re. In that case, however, it would seem, from the 
length of time that had elapsed since the testator's death, that the land must have 
been actually sold, — in which case, of course, the heir would take the money as 
money. Compare also Ackroyd v. Smithson, supra^ p. 26, and Smith v. Clazton, p. 26. 

' In Clarke v. Franklin, 4 Kay & J. 257, where a trust for converting land into money 
was created by deed, but all the purposes of the trust failed ab initio, except the pay- 
ment of six sums of 50/. each, and one sum of 20/., to persons named, it was held that 
the equitable interest in the land resulted immediately to the grantor, subject only to 
the payment of those seven sums, but that the same was money in his hands, the 
land being converted into money in equity the moment that the deed was delivered. 
It was, therefore, held that the grantor, by directing the land to be sold, i.e.^ exchanged 
for money, had immediately converted it into money, so that it became money in his 
own hands. This, however, was not merely a complete non-sequitur, i. r., a thing 
which did not in the least follow from the direction to sell the land, but it was a legal 
impossibility. On the delivery of the deed the legal title to the land passed to the 
trustee, the equitable interest remaining in the grantor ; and at the same moment, ac- 
cording to the decision, there was a transmutation of this equitable interest from land 
into money. Such a transmutation could be made, however, only by equity itself, and 
equity could make it only for an adequate cause, and it was not pretended that any 
cause existed. Moreover, such a transmutation would be entirely independent of the 
direction to sell the land, and inconsistent with it It may be added that the seven 
persons, each of whom was to receive a small sum out of the proceeds of the sale, had 
nothing to do with the equitable conversion, having merely a charge on the land, for 
the amounts coming to them respectively. 



30 HARVARD LAW REVIEW. 



PATENTABLE PROCESSES 

THE law of patents is purely statutory. In this country the 
right of an inventor to a patent or grant, by which alone this 
species of property is created, depends entirely upon the provi- 
sions of the acts of Congress, passed pursuant to its constitutional 
power,^ as interpreted by the decisions of the federal courts.^ 

Under this power Congress can grant a patent only to an inven- 
tor, and to him only for his own discovery and for a limited time ; 
but, subject to these limitations, its power to legislate upon the 
subject of patents is plenary, and it may refuse all privileges what- 
soever or bestow them for such classes of inventions and on such 
conditions as it may be pleased to prescribe.' 

A process, by that name, never has been made the subject of a 
patent in any of our statutes. But every patent act has made 
provision for the grant of a patent to any one who has invented or 
discovered any new and useful " art," as well as " machine, manu- 
facture, or composition of matter," or any new and useful improve- 
ment thereof; and a process, it is well settled, is included under the 
general term " useful art," or rather is an art, the two terms being 
practically synonymous. ' 

As defined by Mr. Justice Bradley, speaking for the Supreme 
Court in the case of Cochrane v. Deener,* " A process is a mode 
of treatment of certain materials to produce a given result. It is 
an act, or a series of acts, performed upon the subject-matter to 
be transformed and reduced to a different state or thing. If new 
and useful, it is just as patentable as is a piece of machinery. In 
the language of the patent law, it is an art The machinery pointed 
out as suitable to perform the process may or may not be new or 
patentable ; whilst the process itself may be altogether new, and 
produce an entirely new result. The process requires that certain 
things should be done with certain substances, and in a certain 
order ; but the tools to be used in doing this may be of secondary 
consequence." 

1 Art. I. § 8, clause 8. 

* Brown ». Duchesne, 19 How. (U. S.) 183, 195. 

* Blanchard v. Sprague, 3 Sumn. (U. S. C. C.) 535, 541 ; McClurg v. Kingsland, i 
How. (U. S.) 202, 206. 

* 94 U. S. 780, 788. 



PATENTABLE PROCESSES. 3 1 

This definition was further elaborated by the same distinguished 
judge in Tilghman v. Proctor,^ where, after reviewing several prior 
decisions, he quotes, from the opinion of Mr. Chief Justice Taney 
in the case of O'Reilly «;. Morse,* the statement that "Whoever 
discovers that a certain useful result will be produced in any art 
by the use of certain means is entitled to a patent for it, provided he 
specifies the means," and declares that this clear and exact sum- 
mary of the law affords the key to almost every case that can arise. 
" But," he explains, " everything turns on the force and meaning 
of the word ' means/ It is very certain that the means need not 
be a machine, or an apparatus; it may, as the court says, be a 
process. A machine is a thing. A process is an act, or a mode 
of acting. The one is visible to the eye, — an object of perpetual 
observation. The other is a conception of the mind, seen only by 
its effects when being executed or performed. Either may be the 
means of producing a useful result" It is only where apparatus is 
required and is not sufficiently obvious to suggest itself to a person 
skilled in the particular art, that the patentee of a process is 
required to describe some apparatus by which it can be practi- 
cally carried out.^ 

In the Telephone Cases,* which involved the patentability of Bell's 
claim for a method of, and apparatus for, transmitting vocal or other 
sounds telegraphically, " by causing electrical undulations, similar 
in form to the vibrations of the air accompanying the said vocal or 
other sounds," the court held, in an opinion written by Mr. Chief 
Justice Waite, that Bell had both discovered a new art and invented 
a machine by which it could be practiced and sO made useful ; and 
that the law unquestionably gave him the right to a patent there- 
for — as discoverer, for the art or process of transmitting speech 
he had found, and as inventor, for the means he had devised to 
make his discovery one of actual value. The court again ob- 
served that a patent for an art does not necessarily involve a 

1 102 U. S. 707, 728. This case was decided by a unanimous court, after most care- 
ful consideration, and reversed a prior decision upon the same patent, in Mitchell v. 
Tilghman, 19 Wall. (U. S.) 287, where it was held, Justices Swayne, Strong, and Bradley 
dissenting, that the patent was limited to a process practiced by means of the par- 
ticular apparatus pointed out in the specification, and, as so limited, had not been 
infringed. 

« IS How. (U. S.) 62. 

' Approved and applied in New Process Fermentation Co. v. Maus, 122 U. S. 413, 

427. 

* 126 U. S. I, 532. 



32 HARVARD LAW REVIEW. 

patent for the particular means employed for using it, the men- 
tion of any means being necessary only to show that it can be 
made of use. 

Of the processes involved in the above cases and therein held 
patentable as " arts/' Bell's consisted in so using and controlling 
electricity, a force of nature, as to make it accomplish the purpose 
in view ; Tilghman's process was of a chemical nature ; and Coch- 
rane's was, apparently, a purely mechanical process.^ Other pro- 
cess patents which came before the Supreme Court for adjudication, 
covering a wide range of arts, were either sustained,^ or were held 
invalid on other grounds or not infringed,^ without any discussion 
or question of the patentability of the processes as such.* 

Indeed, the language used by the court in defining the term 
^* process," as quoted above, is broad enough to include all acts or 
modes of acting by which a given subject-matter is transformed 
into a different state or thing; and certainly the statute* makes 
no distinction between different classes of processes, but declares 
" any " new and useful art — that is to say, process — patentable, 

^ "The hereinbefore described process for manufacturing flour from the meal of 
ground wheat, by first taking out the superfine flour, and then taking out the pulveru- 
lent impurities by subjection to the combined operations of screening and blowing and 
afterward regrinding and rebolting the purified middlings." 

a Mowry v. Whitney, 14 Wall. (U. S.) 620 ; Klein v. Russell, 19 WaU. (U. S.) 433 ; 
The Wood Paper Patent, 23 Wall. (U. S.) 566; Eames v. Andrews, 122 U. S. 40; 
Lawther v, Hamilton, 124 U. S. i ; Toplifif v. TopUff, 145 U. S. 156; Hoyt v. Home, 
145 U. S. 302. 

* McClurg V. Kingsland, i How. (U. S.) 202 ; Brown v. Piper, 91 U. S. 37 ; Sewall 
V. Jones, 91 U. S. 171'; Merrill v. Yeomans, 94 U. S. 568; Vinton v. Hamilton, 104 
U. S. 485; Heald v. Rice, 104 U. S. 737; Packing Company Cases, 105 U. S. 566; 
Manning v. Glue Co., 108 U. S. 462 ; Downton v. Milling Co., 108 U. S. 466 ; West- 
ern Electric Co. v. Ansonia Brass & Copper Co., 114 U. S. 447; Miller v. Foree, 116 
U. S. 22; Plummer v, Sargent, 120 U. S. 442; Dre3rfus v. Scarle, 124 U. S. 60; 
Mosler Safe & Lock Co. v. Mosler, 127 U. S. 354; Bate Refrigerating Co. v. Ham- 
mond, 129 U. S. 151; Bene v, Jeantet, 129 U. S. 683; Marchand v, Emken, 132 
U. S. 195; Commercial Mfg. Co. v. Fairbank Co., 135 U. S. 176; International Tooth 
Crown Co. v. Gaylord, 140 U. S. 55; Ansonia Co. v. Electrical Supply Co., 144 U. S. 
II ; Royer v. Coupe, 146 U. S. 524; Weatherhead v. Coupe, 147 U. S. 322; Lovell 
Mfg. Co. V. Cary, 147 U. S. 623 ; Leggett v. Standard Oil Co., 149 U. S. 287. 

* Attention should also be called to another line of cases in which patents originally 
granted for machines had been reissued with claims for processes and the reissues 
were held invalid on the ground that they covered different inventions from those of 
the original patents. See Burr v. Duryee, i Wall. (U. S.) 531 ; Fuller v. Yentzer, 94 
U. S. 288, 299; James v. Campbell, 104 U. S. 356; Heald v. Rice, 104 U. S. 737; 
Wing V. Anthony, 106 U. S. 142; Eachos v. Broomall, 115 U. S. 429; White v, 
Dunbar, 119 U. S. 47. 

^ Rev. Stats. § 4886. 



PATENTABLE PROCESSES, 33 

provided, of course, it amounts to a discovery or involves an act of 
invention. 

But, in 1895, ''^ 21 unanimous opinion written by Mr. Justice 
Brown in the case of Risdon Locomotive Works v. Medart,^ the 
court announced as an established rule of law the doctrine that 
while certain processes of manufacture were clearly patentable it 
was equally clear that certain others were not; and stated that, 
although the distinction between them was nowhere accurately 
defined, it might be said in general that processes which involved 
chemical or other similar elemental action were patentable, though 
mechanism might be necessary in their application or use, while 
those which consisted solely in the operation of a machine were 
not patentable, since such processes were purely mechanical and 
entirely independent of any chemical or other similar action. 

Following this decision, the lower courts began at once to hold 
invalid patents for processes the patentability of which had never 
before been questioned.^ The view that patentability had been 
denied to all merely mechanical processes was so widely entertained, 
and affected the validity of such a large class of process patents, 
that the court, again speaking by Mr. Justice Brown, seized upon 
the occasion shortly afterwards presented in the case of Westing- 
house V. Boyden Power Brake Co.,* to explain its prior decision by 
stating that, while it had there been assumed, although not ex- 
pressly decided, that a process to be patentable must involve a 
chemical or other similar elemental action, it might still be regarded 
as an open question whether the patentability of processes extended 
beyond this class of inventions. And it added: "Where the 
process is simply the function or operative effect of a machine, 
the above cases are conclusive again.st its patentability; but where 
it is one which, though ordinarily and most successfully performed 
by machinery, may also be performed by simple manipulation, . . . 
there are cases to the effect that such a process is patentable, 
though none of the powers of nature be invoked to aid in pro- 
ducing the result."* 

1 158 u. S. 68. 

* See, for instance, Travers v. American Cordage Co., 64 Fed. Rep. 771, and Tra- 
vers V. Hammock & Fly Net Co., 78 Fed. Rep. 638, the first decided before, and the 
second shortly after, the opinion in the Locomotive Works Case was handed down. 

» 170 U. S. 537, 556. 

« Citing Eastern Paper Bag Co. v. Sundard Paper Bag Co., 30 Fed. Rep. 63 ; 
Union Paper Bag Mach. Co. ». Waterbury, 39 Fed. Rep. 389 ; and Travers v. American 
Cordage Co., 64 Fed. Rep. 771. 

3 



34 HARVARD LAW REVIEW. 

The uncertainty and confusion in which the whole subject of 
patentable processes is left by these two recent cases — and it has 
not been removed by any later decision of this court — is apparent- 
Does a given process involve a chemical or other similar elemental 
action, and what is to be included in this alternative term? What 
is meant by function or operative effect of a machine, and when is 
a process simply such a function or effect? And is, or is not, a 
process patentable where it does not invoke the aid of any power 
of nature, but can be performed by simple manipulation, although 
better performed by machinery? These are questions which will 
arise and must be answered — and the answers, as intimated by the 
court in the Locomotive Works Case, will necessarily be veiled in 
an obscurity similar to that which clouds the line of demarcation 
between mechanical skill and invention — if this doctrine, that only 
certain classes of processes, vaguely defined at best, are patentable, 
is, or is to become, the established rule in the law of patents. 

The subject is of such practical importance, and the effect of any 
unnecessary confusion is so deplorable, as to justify a critical 
examination of the situation, to determine whether the doctrine is 
sound in principle, and, if not, to what extent the Supreme Court 
has bound its future action by its past decisions. 

Every article of human contrivance, whether a machine, manu- 
facture, or composition of matter, is the product and necessarily 
involves the practice of some process, — the performance of some 
act, or series of acts, by which the raw or partly manufactured 
products of nature are fashioned or united to make the article in 
question. Indeed, all natural products result from processes in 
which their elements coact, in accordance with natural laws, or are 
acted upon by the powers of nature. 

A machine, itself an article of manufacture, is simply a means 
for performing the acts by which some other manufacture, whether 
another machine or the ultimate article designed for consumption, 
is produced. 

In an abstract sense, therefore, the function of a machine may 
be said to be the production of the manufactured article for the 
making of which it was designed. More concretely, the function of 
every machine is to perform some definite process — some act, or 
series of acts — upon a material object, by which it is transformed 
into a different state or thing. It follows that this process is not 
simply the function of the machine. The two are entirely distinct 



PATENTABLE PROCESSES. 3$ 

entities. The one, as stated by Mr. Justice Bradley in the Tilghman 
Case, " is a conception of the mind, seen only by its effects when 
being executed or performed." The other is the production of 
those physical effects upon a material object. For example, in 
the case of the simple process of making paper bags, the acts of 
folding first in one way and then another, which constitute the pro- 
cess, can easily be conceived, wholly apart from the piece of paper 
to be acted upon ; but the function or operative effect of a paper 
bag machine can be realized only when the paper is actually sub- 
jected to the action of the machine. In this case, moreover, it is 
apparent that the process is something different from, and more 
than, the function of the machine, because it can also be performed 
without the aid of any machine. It is only where a process can be 
performed in no other known way than by a particular machine 
that difficulty is experienced in distinguishing between it and the 
function of the machine. But the distinction is none the less real. 
"The difficulty," as pointed out by Professor Robinson,^ "is 
another form of th^ old confusion between the end and the means, 
and is to be avoided by defining sharply the end to be accom- 
plished, and determining whether the machine or the operation 
performed by it is the actual means." The acts which constitute 
the process are, primarily, the means for attaining the end in view. 
The machine, as already stated, is simply a means for performing 
the process ; and that is its function or operative effect. It is 
always possible that a different machine, or other means, may be 
devised for performing this operation. Thus, Bell's method of 
transmitting vocal sounds telegraphically is not simply the function 
of the crude apparatus by which he reduced his process to practice. 
In the natural course of development, many processes of manu- 
facture are first performed by hand, then partly by machinery and 
partly by hand, and, finally, automatically, by a machine. For 
others, machines have not yet been devised ; and such processes 
must be performed wholly or in part by hand. Still other pro- 
cesses are beyond the power or skill of the hand, and must be 
performed, if at all, by a machine. But, however carried into 
effect, the process is still a process ; and it matters not whether it 
was first practiced by hand, or was discovered and reduced to 
practice only in connection with the development of a machine. 
It does not cease to be such because it is, or must be, performed 

^ I Robinson on Patents, § 172, note a ; see, also, §§ 144*146^ 167. 



36 HARVARD LAW REVIEW. 

by mechanical means. Even when a process seems inseparably 
identified with a particular machine, as the only known means by 
which it can be carried into effect, its inventor is entitled to a 
patent for the process as well as for the machine ; and it is only 
by such a patent that his whole invention is secured to him against 
all possible contingencies.^ 

The useful arts are no less promoted by the inventor who dis- 
covers a simple manipulative process than by one who discovers 
a new chemical process. Congress, therefore, has the same con- 
stitutional power to secure his discovery, for a limited time, to 
the one inventor as to the other; and in the exercise of this 
power, as already stated, it has never made any distinction between 
mechanical and other processes. The provision of the Patent Act is 
broad enough to cover all processes alike, the only qualifications 
being that the process shall have been invented or discovered, 
and be new and useful. 

With these preliminary observations we will pass to the consid- 
eration of the basis for, and the limitations of, the doctrine, which 

^ Curtis, Law of Patents, 4th ed. § 14, note. — "A process may be altogether new, 
whether the machinery by which it is carried on be new or old. A new process may be 
invented or discovered, which may require the use of a newly invented machine. In 
such case, if both the process and the machine were invented by the same person, be 
could take separate patents for them. A new process may be carried on by the use of 
an old machine, in a mode in which it was never used before. ... In such a case, the 
patentability of the process in no degree depends upon the characteristic principle of 
the machine, although machinery is essential to the process, and although a particular 
machine may be required." 

I Robinson on Patents, 1 172, note 2. — " If the operation performed by the machine 
is new in reference to the object upon which it is employed, a new process has been 
invented ; and this is no less true if the machine or instrument employed is new than if 
it were old, or if the process can be performed in no other known way than by this 
particular machine. While, on the other hand, if the operation is known in reference 
to the object, the invention of a new machine for performing it does not make a 
new process, but only a new instrument for applying it. . . . Whether or not a new 
machine is the reduction to practice of a new process, or is a new instrument for the 
performance of an old process, is, therefore, to be determined by the state of the art at 
the date of the invention. If it is the former, the process is patentable, though the 
machine be new. If the latter, only the machine can be allowed the protection of the 
law." 

Tilghman v. Proctor, 102 U. S. 707. 721. —"Had the process been known and used 
before, and not been Tilghman's invention, he could not then have claimed anything 
more than the particular apparatus described in his patent ; but being the inventor of 
the process, as we are satisfied was the fact, he was entitled to claim it in the manner 
he did." 

See Providence Rubber Co. v, Goodyear, 9 Wall. (U. S.) 788, 796. 



PATENTABLE PROCESSES. 37 

has been declared to be an established rule of law, that certain 
processes are not proper subject-matter for a patent. 

Wyeth V. Stone,* decided by Mr. Justice Story in 1840, is the 
first case cited in support of this proposition, and is said to show 
the distinction between patentable and unpatentable processes, and 
to be the earliest reported case upon that subject. In the patent 
in suit, the inventor, after describing a horse-machine for* cutting 
ice and its mode of operation, had claimed, as new, the process of 
cutting ice *' of a uniform size, by means of an apparatus worked 
by any other power than human." This was held to be '* a claim 
for an art or principle in the abstract, and not for any particular 
method or machinery," and to be " broader than the actual inven- 
tion of the patentee." But another claim in the specification for 
the particular apparatus to cut ice, described therein, was sus- 
tained as valid. It is difllicult to see the bearing of this decision 
upon the patentability of processes. The question whether the 
specific acts performed in the operation of Wyeth's machine were 
patentable as a process, if new, is not even referred to. All that 
appears to have been decided was, that a patentee could not go 
beyond his actual invention and have a valid claim for an art or 
principle in the abstract 

O'Reilly v. Morse,* decided by the Supreme Court in 1853, is to 
the same effect. After describing and claiming the several parts of 
his apparatus, Morse made claim, broadly, to " the use of the motive 
power of the electric or galvanic current . . . however developed, 
for marking or printing intelligible characters, signs, or letters, at 
any distances, being a new application of that power," of which he 
asserted that he was the first inventor or discoverer. Morse had 
unquestionably discovered a new process, which might be described 
as the method of transmitting intelligence to a distance by causing 
the making and breaking of an electric circuit at one point to pro- 
duce certain conventional signs at a distant point But instead of 
claiming such a process, he made his claim to an art or principle 
in the abstract — to the use of a power of nature to perform an ab- 
stract function or effect an abstract result, regardless of the particu- 
lar process or apparatus employed ; and the court held, correctly, 
that his claim was " too broad, and not warranted by law," citing 

I I Story (U. S. C. C.) 273, 285. 

'15 How. (U. 8.) 62, 112, 117, 119. For a somewhat similar case, where the paten- 
tee had failed to claim the process he had invented, see Le Roy v, Tatham, 14 How. 
(U. S.) 156 ; and s. c, 22 How. (U. S.) 13a. 



38 HARVARD LAW REVIEW. 

Wyeth V. Stone as a case directly in point Mr. Chief Justice 
Taney, writing the opinion, points out that, whether the tele- 
graph be regarded as an art or machine, '' the manner and 
process of making or using it must be set forth in exact terms," 
the act of Congress making no difference in this respect be- 
tween an art and a machine, and thus, as had always been held, 
the patent embraced nothing more than the actual improvement 
described and claimed as new, any one being at liberty to use all 
methods of accomplishing the same object which differed substan- 
tially from the one described. 

Corning v. Burden,^ also decided in 1853, is, however, the case 
principally relied upon, and is the only one of its own decisions 
cited by the Supreme Court, in the Locomotive Works Case, in 
support of its position.* The case turned upon the proper con- 
struction of the claim of the patent in suit. The declaration 
averred that the patentee was " the first inventor of a new and 
useful machine for rolling puddle balls," for which a patent was 
granted in 1840, and that the defendants had " made, used, &c., this 
said new and useful machine." The patent itself was entitled, and 
its specification described, " a new and useful machine for rolling 
puddle balls and other masses of iron in the manufacture of 
iron " ; but the claim, in rather ambiguous language, was for " the 
preparing of the puddle balls ... by causing them to pass be- 
tween a revolving cylinder and a curved segmental trotlgh adapted 
thereto, constructed and operating substantially in the manner of 
that herein described and represented." The court below con- 
strued the patent as for a new process and so instructed the jury, 
who returned a verdict for the plaintiff. On exception to this 
charge the Supreme Court reversed the judgment and awarded a 
new trial.' Mr. Justice Grier, who wrote the opinion, after recit- 
ing the facts, introduces an inquiry as to whether the patent was 
for a process or a machine by the following general statement : 

1 iSHow. (U.S.)252. 267. 

* Wicke V. Ostrum, 103 U. S. 461, 469, is also dted, to the same effect, in the West- 
inghouse Case ; but in that case it was held, simply, that while the patentee coald not 
patent " the idea of driving more than one nail at the same time in the manufacture of 
boxes by the use of machinery,** he could claim, as his patent merely did, hb contriv- 
ance to make that idea practically useful. 

* For other cases in which ambiguous claims have been construed as claims for 
machines, not processes, see Burr v. Duryee, i Wall. (U.S.) 531; Railroad Co. v. 
Du Bois, 12 Wall. (U. S.) 47; Fuller v, Yewtxer, 94 U. S. 288, 299; Grier v. Wilt, 
120 U. S. 412; Dryfoos v. Wiese, 124 U. S. 32; Crescent Brewing Co> v. Gottfried^ 
128 U. S. 158; Grant v, Walter, 148 U. S. 547. 



PATENTABLE PROCESSES. 39 

'' A process, eo nomine^ is not made the subject of a patent in our act of 
Congress. It is included under the general term 'useful art.' An art may 
require one or more processes or machines in order to produce a certain 
result or manufacture. The term machine includes every mechanical de- 
vice or combination of mechanical powers and devices to perform some 
function and produce a certain effect or result. But where the result or 
effect is produced by chemical action, by the operation or application of 
some element or power of nature, or of one substance to another, such 
modes, methods, or operations, are called processes. . . . One may dis- 
cover a new and useful improvement in the process of tanning, dyeing, &c., 
irrespective of any particular form of machinery or mechanical device. And 
another may invent a labor-saving machine by which this operation or process 
may be performed, and each may be entitled to his patent. ... It is for the 
discovery or invention of some practicable method or means of producing a 
beneficial result or effect, that a patent is granted, and not for the result or 
effect itself. It is when the term process is used to represent the means or 
method of producing a result that it is patentable, and it will include all methods 
or means which are not effected by mechanism or mechanical combinations. 
But the term process is often used in a more vague sense, in which it can- 
not be the subject of a patent Thus we say that a board is undergoing the 
process of being planed, grain of being ground, iron of being hammered, or 
rolled. Here the term is used subjectively or passively as applied to the 
material operated on, and not to the method or mode of producing that 
operation, which is by mechanical means, or the use of a machine, as dis- 
tinguished from a process. In this use of the term it represents the function 
of a machine, or the effect produced by it on the material subjected to 
the action of the machine. But it is well settled that a man cannot have a 
patent for the function or abstract effect of a machine, but only for the 
machine which produces it.'' 

Coming then to the case in hand, the learned judge holds that it 
was by not distinguishing between the primary and secondary sense 
of the term process, that the court below appeared to have fallen 
into an error. Burden, he says, did not pretend to have discovered 
any new process, but only a new machine ; and as the patent re- 
quested was for a machine, to construe its claim as for the function 
or eflfect of that machine would certainly endanger, if not destroy, 
its validity. 

The case, therefore, decided only that the patent must be re- 
garded as a patent for a machine, and that the court below erred 
in construing it otherwise. It did not call for a decision of, and 
the attention of the court does not appear to have been directed 
specifically to, the question of the patentability of a new process 



40 HARVARD LAW REVIEW. 

which was purely mechanical and could, perhaps, be performed 
only by the operation of a machine. And, notwithstanding the 
fact that some of the expressions used by way of illustration may 
be given a broader signification, it is believed that the court 
intended to condemn, as unpatentable, only abstractions — "the 
function or abstract effect of a machine," and consequently a 
process in the " secondary," " vague," or " subjective " sense in 
which that term is sometimes used to represent such abstract func- 
tion or effect — as distinguished from a process in the primary and 
only correct sense in which that term was, and has since been, 
defined as synonymous with an " art " ; * and the decision seems 
to have been so understood by the court itself down to the time of 
the Locomotive Works Case.^ 

Coming now to Risdon Locomotive Works v. Medart,* we find 
that the case is based upon a patent — among others — which is, 
admittedly, " for a process in manufacture, and not for the mecha- 

* In Burr v. Duryee, i Wall. (U. S.) 531, 570, decided ten years later, Mr. Justice 
Grier observes that the patent act does not authorize the grant of a patent "for a 
'principle' or a 'mode of operation/ or an idea, or any other abstraction." See, 
also, Case v. Brown, 2 Wall. (U. S.) 320. 

' The remaining cases cited in the Locomotive Works Case to illustrate processes 
which are unpatentable are all comparatively recent decisions of the Circuit Courts, 
and are referred to as follows : '* Although the cases are not numerous, this distinc- 
tion between a process and a function has never been departed from by this court, 
and has been accepted and applied in a large number of cases in the Circuit Courts. 
The following processes have been held not to be patentable : An improvement in 
sewing machines, by which the soles and uppers of boots and shoes could be sewed 
together without any welt by a certain kind of stitches, McKay v. Jackman, 12 Fed. 
Rep. 615. A process for washing shavings in breweries, Brainard v. Cramme, 12 Fed. 
Rep. 621. For an improved method of treating seed by steam. Gage v. Kellogg, 23 
Fed. Rep. 891. A process for crimping heel stiffenings of boots and shoes, Hatch r. 
Moffitt, 15 Fed. Rep. 252. See also Sickles v. Falls Company, 4 Blatchf. (U. S.) 50S; 
Excelsior Needle Co. v. Union Needle Co., 32 Fed. Rep. 221." It will be found, how- 
ever, that every one of these cases was actually decided upon some ground other than 
the unpatentability of the process. Thus, in McKay v. Jackman, it was held that the 
patentee had invented no new process for forming stitches, but simply had applied an 
old stitch to a new part of a shoe, and that an earlier patent for the machine covered 
his whole invention, — in other words, that the process claimed had not been invented 
by the patentee. Brainard v. Cramme and Hatch v. Moffitt were decided upon the 
ground that broad process claims, introduced by reissue into patents for machines 
years after the original patents had been issued, were void within the decisions rela- 
tive to reissued patents. And in Gage v. Herring, which was also based upon a reis- 
sued patent, it was held that this reissue was invalid as being an unlawful expansion of 
the original patent, or, in any event, had not been infringed. The other two cases to 
which reference is made are even more remote in their bearing upon the subject in 
question. 

« iSSU. S.68. 



PATENTABLE PROCESSES. 41 

nism employed, nor for the finished product of such manufacture." 
In going back to a decision handed down more than forty years 
before and from expressions of opinion found therein deducing a 
rule that certain classes of processes are not patentable and apply- 
ing that rule as it has done, it is thought with all deference that 
the court itself has fallen into the same error — a failure to dis- 
tinguish between the primary and secondary meaning of the term 
process — which, in Coming v. Burden, it found to have been made 
by the lower court Thus, in the opinion, the general proposition, 
" That certain processes of manufacture are patentable is as clear 
as that certain others are not," is first announced ; and this is ex- 
plained by the further statement that, generally speaking, '' pro- 
cesses of manufacture which involve chemical or other similar 
elemental action are patentable, though mechanism may be neces- 
sary in the application or carrying out of such processes, while 
those which consist solely in the operation of a machine are not," 
the operation then being " purely mechanical." Next, after re- 
viewing two English cases and its own decisions in O'Reilly v. 
Morse, Mowry v. Whitney, Cochrane v. Deener, Tilghman v. Proc- 
tor, New Process Fermentation Co. v, Maus, and the Telephone 
Cases, and observing that, in all these cases, the process sustained 
was either a chemical one, or consisted in the use of one of the 
agencies of nature for a practical purpose, it prefaces its reference 
to Wyeth v. Stone and Corning v. Burden by the statement that 
'' It is equally clear, however, that a valid patent cannot be ob- 
tained for a process which involves nothing more than the opera- 
tion of a piece of mechanism, or, in other words, for the function of 
a machine." And, finally, it states that " this distinction between a 
process and a function has never been departed from by this court." 

The argument, reduced to the form of a syllogism, appears to 
be this : A function, as always distinguished from a process, is not 
patentable. Some processes, however, are simply the functions of 
machines. Therefore, while certain processes are clearly patenta- 
ble, certain others are not. 

Admittedly, the function of a machine is not patentable. It is 
neither an art, nor a machine, nor either of the other subjects of a 
patent named in the statute. Like a principle, an idea, or an 
effect or result, it is a mere abstraction, possessing none of the 
attributes of an invention.^ What is conceived to be a fallacy 

1 I Robinson on Patents, §§ 13J-150. 



42 HARVARD LAW REVIEIV. 

in the reasoning of the court lies in the minor premise. That a 
process is, or may be, simply the function of a machine, is true only 
in the secondary sense of that term, — in other words, the process, 
so called, is no process at all. As already pointed out, a true 
process is distinct from the function of the machine, even where 
it can be carried out only by the operation of that machine ; and 
no case has been cited in which such a process, when found to be 
new, was held to be unpatentable. In its intermediate proposition, 
therefore, the court seems to have used the term process, in its 
primary sense, as synonymous with the term in its secondary 
sense; which is shown by the fact that its conclusion, that cer- 
tain processes — those, in general, which involve nothing more 
than the operation of a piece of machinery — are unpatentable, 
is made to apply to a process which, as stated, is admitted to be 
" a process in manufacture." 

The patent in suit, after stating that the machinery which had 
been described for carrying out the invention was not claimed 
therein, since it was the inventor's intention to secure that by appli- 
cations thereafter to be filed, concludes with four claims, of which 
the third, illustrative of all, is as follows : " The herein-described 
improvement in the art of manufacturing belt-pulleys, which con- 
sists in centering the pulley center or spider, boring the hub 
thereof, grinding the center or spider concentric with the axis of 
the pulley, securing the rim thereto, grinding the face of the rim 
concentric with the axis of the pulley, and then grinding or squar- 
ing the edges of the rim, substantially as described." 

Here the invention is clearly stated in terms of an art, and not 
in terms of a function; and in this respect the patent differs 
essentially from that of Burden. The process, like Cochrane's 
process of manufacturing flour, " requires that certain things should 
be done with certain substances, and in a certain order ; but the 
tools to be used may be of secondary consequence." Instead of 
being identified with the operation or function of the particular 
machine described, it can evidently be practiced by any one who 
has an ordinary foot-lathe and a tool for grinding. It is true that 
it is purely mechanical ; but in this respect also the process does 
not differ from that of Cochrane — except, perhaps, that what 
might be called an elemental action, but was really nothing more 
than the mechanical action of air set in motion by purely me- 
chanical means, was involved in the " blowing " step of the latter 
process. 



PATENTABLE PROCESSES. 43 

It does not follow, however, that the patent should have been 
sustained. On the contrary, the decision that the patent was in- 
valid is undoubtedly correct, because it appears that the process, 
apart from the machinery devised to carry it out, was not new ; 
and herein lies, it is thought, the real, and only real, distinction 
between this patent and that sustained as valid in Cochrane v, 
Deener. Every step specified in the claims was old and common- 
place, and the court finds, as a matter of fact, that the patentee 
had invented nothing more than a new machine for carrying out 
an old process. 

Had the court rested its decision upon this single fact, it would 
have stood upon firm ground. Instead, by applying to a process 
an old dictum respecting an abstraction and, as the result, by deny- 
ing patentability to a vaguely defined class of true processes, it has 
taken what is conceived to be a long step backwards from the 
position reached and so clearly defined in Cochrane v. Deener and 
Tilghman v. Proctor. 

What is said upon this subject, in the later Westinghouse Case, 
is admittedly obiter dictum. The decision there turned on the 
construction of a claim for a combination of mechanical elements 
in an air-brake, one of which was defined in terms of the function 
which it was designed to perform. Applying the rule that a func- 
tion is not patentable, the court correctly held that this claim, to 
be valid, must be limited to the means shown and described for 
performing the function, or to its mechanical equivalent, and de- 
cided, by a bare majority, that it was not entitled to a range of 
equivalents broad enough to cover the defendant's brake and, 
therefore, was not infringed. It specifically declined to express an 
opinion upon the question whether the function of admitting air 
directly from the train-pipe to the brake-cylinder could have been 
patented as an independent process, since no such claim had 
been made. By citing, however, the case in which the hammock 
weaving process was sustained, rather than the later case ^ in which 
another circuit judge felt constrained by what he regarded as the 
rule laid down in the Locomotive Works Case to hold the same 
process unpatentable, it may, perhaps, fairly be inferred that the 
court was inclined to consider favorably the patentability of those 
processes which, although purely mechanical and ordinarily and 
most successfully performed by machinery, may also be performed 

1 Tnivere v. Hammock & Fly Net Co., 78 Fed. Rep. 638. 



44 HARVARD LAW REVIEW. 

by simple manipulation, — a question which it states was not con- 
cluded by the decision in the Locomotive Works Case. 

It is important to note that, in a dissenting opinion filed in the 
Westinghouse Case, Mr. Justice Shiras, with the concurrence of 
Mr. Justice Brewer, states^ that no reason is given in the authori- 
ties, and he can think of none in the nature of things, why a new 
process or method may not be patentable, even though a mechani- 
cal device or combination may be necessary to render it practi- 
cable, the term process seemingly being " used by the courts as 
descriptive of an invention which, from its novelty and priority in 
the art to which it belongs, is not to be construed as inhering only 
in the particular means described, in the letters patent, as sufficient 
to exemplify the invention and bring it into practical use." Here 
we have a statement of what is thought to be the true principle 
upon which the patentability of a process depends ; and it shows, 
further, that at least two of the judges who participated in the de- 
cision in the Locomotive Works Case concurred in that decision, 
not for the reasons stated in the opinion therein, but because 
the invention was there found to inhere only in the machine 
described, the process itself being old. 

Three other cases involving process claims have been decided 
by the Supreme Court since the Westinghouse Case. The process 
was held void, for want of novelty, in one,^ and was sustained in 
another; ^ but both of these processes involved the element of heat 
and probably some chemical action as well, and the subject of 
their patentability as processes was not discussed. The remaining 
case, however, requires consideration. 

In Busch z/. Jones,^ the patent contained four claims covering the 
mechanical elements of a press used for removing from printed 
sheets the indentations formed by the type in printing, and a fifth 
claim for the process of treating the printed sheets, by " subjecting 
a collection of such sheets to pressure without the use of fuller- 
boards, and while under such pressure tying them into a compact 
bundle with end boards, then removing them immediately from 
the press, and allowing them to remain tied sufficiently long to fix 
and complete dry pressing." This dry pressing, as it is called, had 
previously been done by placing a pile of printed sheets in a press 

1 170 U. S. 537, 574. 

* United States Repair & Goarantee Co. v. Assyrian Asphalt Co., 183 U. S. 591. 

* Carnegie Steel Co. v. Cambria Iron Co., 185 U. S. 403. 

* 1S4 U. S. 598. 



PATENTABLE PROCESSES 45 

and leaving them there, under pressure, until they had become suffi- 
ciently dry to remain smooth and flat. The patented method, by 
allowing the removal from the press of the bundle of sheets as soon 
as tied, effected a great economy in the number of presses required 
to do a given amount of work in a given time. 

Comparing the patented press with a device for pressing and 
tying paper into bundles described in a prior patent, the court 
concludes that though in each the pressure first applied by the 
machine was retained by cords and continued in the bundle, yet 
its purpose in the Jones patent was to remove type indentations 
from the sheets, and in the prior patent to retain the sheets in the 
bundle, and therefore invention might be ascribed to the Jones 
patent if confined to the press proper. But the process claim, it is 
said, must be viewed from a different standpoint And, premis- 
ing the inquiry with a statement that it is entirely independent of 
questions as to what constitutes a patentable process discussed in 
the Locomotive Works and Westinghouse Cases, the conclusion 
is reached that the force at work in the process — both the pres- 
sure begun in the press and its continuance in the bundle by 
means of strings and cords — is entirely due to the press, and that, 
therefore, the process described is nothing but " the operation and 
effect of the machine." Accordingly, the four claims for the press 
were sustained, and the process claim was held invalid. 

Here, again, the process claimed was not new. The steps are 
precisely the same as those which were performed in the use of 
the old Dingham paper press — they arc merely practiced upon 
printed sheets of paper, instead of plain sheets, though for a differ- 
ent purpose. The question of its patentability, therefore, would 
seem to depend solely upon whether the new use to which the 
process had been applied was so analogous to the old as to amount 
merely to a double use, or was so remote that the perception that 
the old process could be used for this new purpose involved an 
act of invention.^ This, of course, is a question of fact, upon which 
opinions may well differ. On the other hand, it seems impossible 
to question the patentable character of the process. Pressure is 
always an effect, and may also be a cause ; and here it is both. 
As a cause, or force, it is used to effect the removal of the type 
indentations, which is the ultimate end in view. It is the effect of 
whatever force is employed to produce it. When this pressure is 

I Potts V, Creager, 155 U. S. 597, 608 ; Hobbs v. Beach, 180 U. S. 383, 392. 



46 HARVARD LAW REVIEW. 

applied to the bundle of printed sheets by means of a particular 
press, it may then be said to be effected by " the operation," and 
be " the natural and direct effect," of that machine; but it may be 
applied by other means, — for instance, by a weight, or a simple 
lever. While the patent describes a press designed especially for 
this work, the process claimed is not limited in this respect, but 
consists in the doing of certain things to certain substances and in 
a certain order, without reference to the mechanical means to be 
employed therefor. The process, moreover, apparently involves 
elemental, as well as mechanical, action, since it is heat — presum- 
ably that of the atmosphere — which dries and so fixes the sheets. 
What is the ground upon which the court rests its decision that 
this fifth claim is void? Were it not for the express disclaimer, it 
certainly would seem to be upon the ground stated in the Locomo- 
tive Works Case. Why, else, all the discussion about the operation 
and effect of the press? On the whole, however, it is probably 
the lack of patentable novelty in the process. The statement of 
the court that the different purpose in view neither added any- 
thing to the operation of the Jones press nor detracted anything 
from the operation of the Dingham press is, in effect, a finding 
that the processes performed in the operation of the two presses 
are identical; and the further finding that, notwithstanding this 
fact, invention may be ascribed to the Jones patent, " if it be con- 
fined to the press proper," may be taken as a denial of invention 
in the process. Inclusio unius est exclusio alterius. Except as it 
may possibly indicate a want of confidence in the reasoning in the 
Locomotive Works Case, the opinion in this case does not remove 
any of the confusion created by that decision.^ 



1 Since the case of Risdon Locomotive Works v. Medart, a number of process 
patents have been adjudicated in the Circuit Courts. Travers v. Hammock & Fly Net 
Co., 78 Fed. Rep. 658; Gindorff v, Deering, 81 Fed. Rep. 952 ; Pratt v. Thompson & 
Taylor Spice Co., 83 Fed. Rep. 516; Amer. Strawboard Co. v. Elkhart Egg-Case Co., 
84 Fed. Rep. 960; Stokes Bros. Mfg. Co. z'. Heller, 96 Fed. Rep. 104; Dodge Mfg. 
Co. V. Ohio Valley Pulley Works, loi Fed. Rep. 584; Fabric Coloring Co. r. Alexan- 
der Smith & Son's Carpet Co.. 109 Fed. Rep. 328 ; Ballou v. Potter, 1 10 Fed. Rep. 
969; Cleveland Foundry Co. v. Detroit Vapor Stove Co., 131 Fed. Rep. 740; Man- 
hattan General Const. Co. v. Helios-Upton Co., 135 Fed. Rep. 785; Blakesley Novelty 
Co. V. Connecticut Web Co., 78 Fed. Rep. 480 ; Simonds Rolling-Mach. Co. v. Hathorn 
Mfg. Co., 90 Fed. Rep. 201 (affirmed, 93 Fed. Rep. 958); Melvtn v. Thos. Potter, 
Sons & Co., 91 Fed. Rep. 151 ; Westinghouse Elec. & Mfg. Co. v, Catskill Ilium. & 
Power Co., 94 Fed. Rep. 868 ; Chisholm v. Johnson, 106 Fed. Rep. 191 (see, also, 
115 Fed. Rep. 625); Diamond Stone Sawing Mach. Co. v. Dean, in Fed. Rep. 380; 
Schlicht Heat, Light & Power Co. v. Aeolipyle Co., 117 Fed. Rep. 299; Peters v. 



PATENTABLE PROCESSES. 47 

The situation, then, as it stands to-day, is as follows : 

The Revised Statutes provide ^ that the inventor or discoverer of 
any new and useful art, or any new and useful improvements thereof, 
may obtain a patent therefor upon due proceedings had in com- 
pliance with the regulations prescribed. 

A process — understanding the term, in its proper sense, as an 
act, or a series of acts, by means of which some physical change 
is produced in a material object — is an art, within the meaning of 
the statute, and as such is just as patentable as is a machine ; pro- 
vided (a qualification nowhere found in the statutes) it involves a 
chemical or other similar elemental action, such, for instance, as 
the action of electricity, heat, or, apparently, air mechanically set 
in motion. Of this there can be no questioa 

When a process which does not invoke any power of nature to 
aid in effecting the desired result may be performed by simple 
manipulation, although ordinarily and most successfully performed 
by machinery, it certainly ought to be patentable. There is no 
reason in the nature of things why it should not be ; and to hold that 
it is not would surely seem to nullify, in part, the will of Congress 
as expressed in its duly authorized acts. Indeed, the patentability 
of such processes might be regarded as established by three cases,^ 

Union Biscuit Co., 120 Fed. Rep. 679 (see, also, 125 Fed. Rep. 601); Kirchberger v, 
Amer. Acetylene Burner Co., 124 Fed. Rep. 764 (affirmed, 128 Fed. Rep. 599 ); Chls- 
holm V, Flemming, 133 Fed. Rep. 924. There are also a number of decisions in the 
Circuit Courts of Appeals. Wells Glass Co. v. Henderson, 67 Fed. Rep. 930; Amer. 
Fibre-Chamois Co. v, Buckskin-Fibre Co., 72 Fed. Rep. 508 ; Phil. Creamery Supply 
Co. V. Davis & Rankin Bdg. & Mfg. Co., 84 Fed. Rep. 881 ; Chicago Sugar-Refining 
Co. V. Charles Pope Glucose Co., 84 Fed. Rep. 977 ; Streator Cathedral Glass Co. v. 
Wire-Glass Co., 97 Fed. Rep. 950; Chinnock v. Paterson, P. & S. Tel. Co., 112 Fed. 
Rep. 531 ; Dayton Fan & Motor Co. v. Westinghouse Elec. & Mfg. Co., 118 Fed. Rep. 
562 ; Westinghouse Elec. & Mfg. Co. v. Stanley Instrument Co., 133 Fed. Rep. 167 ; 
Kahn v. Starrells, 135 Fed. Rep. 532. The subject has also been carefully considered 
by the Court of Appeals for the District of Columbia in two cases appealed from the 
Patent Office. In re Weston, 17 App. D. C. 431 ; In re Cunningham, 21 App. D. C. 
28. And by the Commissioner of Patents. Ex parte Creveling, in O. G. 2489. 

It may be stated that since the decision in the Westinghouse Case was handed 
down, the lower courts very generally have sustained patents for that class of pro- 
cesses the patentability of which was there left as an open question, while they quite 
uniformly have held unpatentable, as the mere function of a machine, those processes 
which apparently were identified with the operation of a machine, either because the 
steps of the process were, by express limitation, to be performed by means of a 
particular mechanical element or combination, or because the process could be per- 
formed in no other known way than by a machine. 

I §4886. 

* In Eames v. Andrews, 122 U. S. 40, the claim sustained was for "the process of 
constructing wells by driving or forcing an instrument into the ground until it is pro* 



48 HARVARD LAW REVIEW. 

in which claims for processes apparently belonging to this class 
were sustained, were it not for the doubt raised by Risdon Loco- 
motive Works V, Medart and the later statement, in Westinghouse 
V. Boyden Air Brake Co., that the question is still to be regarded 
as open. It may confidently be expected, however, that, when a 
case presents itself, the Supreme Court will hold, as it certainly 
seemed to intimate in the Westinghouse Case and as the lower 
courts have since held quite generally, that a process of this class 
is the proper subject for a patent. 

The further proposition, that where a process is simply the 
function or operative effect of a machine the authorities are con- 
clusive against its patentability, is correct only when properly 
understood. If the term process is taken in the secondary or sub- 
jective sense defined in Corning v. Burden, as representing merely, 
or as synonymous with, the function of, or the effect produced by, 
a machine, then indeed the proposition is conclusively established, 
both by the authorities and as a matter of principle. In this case, 
however, the process is not a process at all, but simply an abstrac- 
tion, and for that reason unpatentable. If it means that a process, 
or art, is not patentable where it is new only in the sense that it is 
performed, better perhaps than before, by the operation and as the 
function of a newly invented machine, then it coincides with the 
facts of, and is established by, Risdon Locomotive Works v. 
Medart In that case the process was not patentable because it 
was old and the whole invention inhered in, and was limited to, 
the particular means devised for carrying it out, as was apparently 
the ratio decidendi in Busch v. Jones. But this is as far as the 
court has yet gone. If the proposition means anything more — if, 
for instance, it means that a true process is not patentable, although 
altogether new, where it is seemingly identified with the function 

jected into the water without removing the earth upward, as it is in boring, substan- 
tially as herein described." 

In Topliff V, Topliff, 145 U. S. 156, the patent contained two claims, both of which 
were sustained, the first being for '*the herein-described method of equalizing the 
action of springs of vehicles and distributing the weight of the load/' namely, by "con- 
necting together by a rigid rod the two pivoted links upon the clips employed on the 
hind axle." 

And in Hoyt v. Home, 145 U. S. 302, the daim on which a decree for the complai- 
nant was directed was as follows : *' The improvement in beating rags to pulp in a rag 
engine having a beater-roll and bed-plate knives, consisting in circulating the fibrous 
material and liquid in vertical planes, drawing the same between the knives at the 
bottom of the vat, carrying it around and over the roll and delivering it into the upper 
section of the vat, substantially as described." 



PATENTABLE PROCESSES. 49 

or operative effect of a machine because it can be performed in no 
other known way than by that particular machine — it not only 
does not find support in any actual decision of the Supreme Court, 
but is unsound in principle. 

As stated in Risdon Locomotive Works v. Medart, the proposi- 
tion is, at best, misleading. It was not properly applicable to that 
case, which could, and should, have been decided upon other 
grounds ; and two of the justices who participated in that decision 
have since made it clear that they do not agree with the reasoning 
on which the decision is made to rest. Perhaps there were others. 
It is earnestly to be hoped, not only that the court will not extend 
the doctrine beyond the facts of that case, but will, as it alone can 
do, remove all the confusion which has resulted therefrom by re- 
affirming the broad principles of law governing the patentability of 
processes, so clearly set forth by Mr. Justice Bradley, and by plac- 
ing the invalidity of patents for processes which are in fact old 
distinctly upon the correct statutory ground. 

The patentability of a process should, under our laws, be deter- 
mined solely by ascertaining whether such process, as distinguished 
from the means by which it is to be performed, is new and useful, 
and amounts to an invention or discovery. If it meets this test 
successfully, the process fulfills every requirement, and is the 
proper subject of a patent 

William B. Whitney. 
New York. 



Harvard Law Review. 



Pubtiah«d monthly, during th« Academic Year, by Harvard Law Students. 
•UBtORIPTION PRICE. $2.60 PCR ANNUM 86 OENTt PER NUMBER. 

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The Law School. — No changes are to be recorded this year in the 
personnel of the faculty except in the extra courses. Mr. Charles J. 
Hughes, Jr., of Denver, Colorado, will give a course on the Law of Mining 
and Irrigation ; Mr. Jeremiah Smith, Jr., son of Professor Smith, will con- 
duct the course on Massachusetts Practice ; and Professor Winter^s absence 
in Europe will leave Mr. Willard in charge of the courses on Forensic 
Discussion and Voice Training. Professor Strobel and Assistant Professor 
Westengard are still on leave of absence in Siam. The changes in the 
curriculum are few. Assistant Professor Warren is conducting the entire 
course of Property II, instead of dividing it with Professor Beale, as last 
year. Constitutional Law will again be given by Professor Wambaugh, but 
as a whole course this year. Both Quasi Contracts and Admiralty are 
announced, the former to be conducted by Dean Ames, the latter by some 
one not yet determined upon. Dean Ames has prepared a new edition 
of his Cases on Pleading, and Professor Williston of his Cases on Sales, 
both books being in use this year in their respective courses. 

The enrollment at the School on October 15 th showed a decrease over 
that of last year. Statistics will be given in the December number. 



Constructive Eviction. — The terra eviction, originally confined to 
the dispossession of the tenant by process of law, was soon extended to 
any expulsion of the tenant by the landlord firom actual possession of the 
demised premises. Later the courts recognized that certain acts of the 
landlord, while not depriving the tenant of actual possession of the prem- 



NOTES. 51 

isesy did prevent his possessing the beneficial use of thero.^ To cover 
these cases the doctrine of constructive eviction was established, allowing 
the sanse remedies as actual eviction. The determination of what acts 
amount to constructive eviction must depend on what rights rest in the 
tenant as against the landlord, and what acts of the landlord so violate 
these rights that the remedies furnished for actual eviction — suspension 
of rent and liability of the landlord in damages — seem desirable. By a 
lease, the tenant acquires, in general, a right as against the landlord to 
the possession of the premises in their present condition. Hence, when 
the landlord does any act on the premises leased,^ or even as owner of 
those premises/ which substantially injures them for the tenant's uses, 
the remedies for actual eviction appear necessary, and constructive evic- 
tion is held to have taken place. The same reasoning applies where 
easements leased as part of the premises are disturbed by the landlord;^ 
also where water, artificial light, or power hitherto transmitted to the 
leased premises from without is cut off by the landlord, since the use of 
the water, light or power is a privilege which constitutes a part of the 
demised premises.* 

If, however, the landlord owns also adjacent premises and by virtue of 
his ownership of them does acts which substantially impair the tenant's 
use of the leased land, the courts seem to have established a distinction.* 
Assuming that, in general, a lease gives to the tenant only rights connected 
with the land leased, and does not impose purely personal obligations on 
the landlord, they reach the conclusion that if a person who has leased to 
a tenant one plot of ground, does an act solely as owner of adjacent prem- 
ises, which injures the tenant's use of his land but does not violate a general 
property right, no right of the tenant has been infringed. 1 hus the courts 
have held that no constructive eviction takes place where the erection of a 
building on the landlord's adjoining lot shuts off the tenant's light and air.^ 
The Washington supreme court recendy reached the same result in a case 
where the landlord of premises leased for a saloon, through his owner- 
ship of adjoining premises, prevented the tenant from obtaining the neces- 
sary license. Kellogg v. Lowe^ 80 Pac. Rep. 458. When, however, the 
act of the landlord, as owner of the adjacent lands, works substantial 
injury and violates a general property right of the tenant, — that is, if the 
tenant would have a right of action against the adjacent owner, were he a 
third person, — some courts have held it a constructive eviction.* On the 
reasoning of the cases just discussed, tbis result could not be reached, since 
the landlord only can evict, and the landlord, as such, has done no 
injurious act. These decisions can perhaps be accounted for by the fact 
that the courts were more inclined to grant the remedies incident to 
eviction, where if allowed they would be merely alternative to those called 
forth by an unquestioned legsd wrong. 



1 Dyctt V. Pendleton, 8 Cow. (N. Y.) 727 ; Edgerton v. Page, 20 N. Y. 281. 

* Cohen v. Dupont, I Sandf (N. Y.) 260; Skallv v. Shute. 172 Mass. idn. 

* Grabenhorst v. Nicodemus, 42 Md. 236. 



* The People ex rel. Murphy v. Gedney, ic Hun (N. Y.) 151. See Patterson v. 
Graham, 40 111. App. 399. Cf. Williams v. Hayward, i £. & £. 1040. 

• Germania Fire Insurance Co. v. Myers, 4 Lane. Law Rev. 151 ; Brown r. Holyoke 



Water Power Co., 152 Mass. 46}. 

• See Doyle v. Lord, 64 N. Y. 432, 439. 

7 Palmer v. Wetmore, 2 Sandf. (N. Y.) 316; Solomon v. Fantozzi, 86 N. Y. 



• See Doyle ». Lord, 
' Palme 
Supp. 754. 
» Dvett 



Dyett V. Pendleton, 8 Cow. (N. Y.) 727 ; Jay v. Bennett, 4 Col. App. 252. 



52 HARVARD LAW REVIEW, 

Jurisdiction over Foreign Corporations that have Ceased to do 
Business in the State. — By comity, a corporation, though logically in- 
capable of existing outside of the state which has chartered it, is recognized 
by the courts of a foreign state in which it does business when it comes to 
them seeking their aid.' When, however, the situation is reversed, when 
the courts are seeking the corporation, it is somewhat difficult to see how 
it can be found for the purposes of jurisdiction, unless, by express or im- 
plied compliance with legislative enactment, the corporation has submitted 
itself to the jurisdiction of the court' The decisions, however, are in 
conflict. The courts of Massachusetts* and Connecticut,* following a 
dictum in an earlier New York case,* have denied their jurisdiction in 
the absence of express statutory enactment. In England* and New 
Hampshire ^ the opposite rule has been established. It must, to be sure, 
be noted that neither the English nor the New Hampshire court dispenses 
entirely with statutory aid in sustaining its jurisdiction. In both cases 
statutes existed providing for service upon officers and agents of corporations. 
It might possibly be said that the courts have held only that the statutes 
applied as well to foreign as to domestic corporations. Whether, however, 
the rule in these cases is not in substantial conflict with the principle 
of the others is an inquiry of little moment to-day/ in view of the almost 
universal modem legislation expressly providing for the service of process 
on foreign corporations as a condition to their doing business in the state. 

The same principles, however, are involved in a question which has of 
late rather frequently arisen under these modem statutes. May a foreign 
corporation which has done business in the state but has withdrawn, still 
be amenable to process served upon its agent in the state? It seems 
clear that the termination of business dealings in the state need not ipso 
facto terminate the statutory agent's authority to receive service. In the 
absence of express provisions, however, such authority should not easily be 
implied. The company has submitted to the jurisdiction of the courts in 
retum for the privilege of doing business in the state ; when it voluntarily 
withdraws, the presumption would be that it has withdrawn for all purposes. 
A common class of statutes, however, provides for the designation of 
special agents — frequently state officers — other than the officers or busi- 
ness agents of the company, to receive service ; and under these statutes 
some courts have held that jurisdiction over the company remains in 
respect to all liabilities incurred by the company while in the state.* This 
was the result reached in a recent case decided in the New Jersey court of 
chancery. Groel v. United Electric Co, of New Jersey, 60 Atl. Rep. 
8 22. Under substantially identical statutes the decisions are about equally 
divided. The view of the statute taken by the New Jersey court, however, 

1 Bank of Augusta v, Earle, 13 Pet. (U. S.) 519. 

* See St. Clair v. Cox, 106 U. S. 350 ; United States v. American Bell Telephone 
Co., 29 Fed. Rep. 17. 34. 

» Peckham v. North Parish, 16 Pick. (Mass.) 274. 

^ Middlebrooks v, Springfield Fire Insurance Co., 14 Conn. 301. 

* McQueen v, Middletown Manufacturing Co., 16 Johns. (N. Y.) 5. 

* Newby r. Von Oppen, L. R. 7 Q. B. 293. 
' Libby v. Hodgdon, 9 N. H. 194. 

» See, however, Barrow S. S. Co. v. Kane, 170 U. S. 100 (1898). 

» SusUiningthe jurisdiction, Collier v. Mutual Reserve Fund Life Ass., 119 Fed. 
Rep. 617 ; Davis v. Kansas and Texas Coal Co., 129 Fed. Rep. 149. Contra, Swann v. 
Mutual Reserve Fund Life Ass., 100 Fed. Rep. 922 ; Freedman v. Empire Life Insur- 
ance Co., loi Fed. Rep. 535. See also Mutual Reserve Fund Life Ass. v. Phelps, 
190 U. S. 147. 



NOTES, 53 

appears reasonable, since, if jurisdiction were intended to continue only 
while the company remained in the state, provision for service on any per- 
sons other than the regular business agents of the company would scarcely 
be necessary. 



•'Police Power" under the Wilson Act of 1890. —The right of 
a state to prohibit or regulate in any way the sale of domestic intoxicating 
liquors has long been undisputed.^ But these prohibitions and regulations 
were rendered partially ineffective in 1890 by a decision of the Supreme 
Court that a state could not interfere with the sale of imported liquors still 
in their " original packages." * As these " original packages " could, under 
the decisions at that date, be of any size, the liquors were imported in con- 
venient parcels; and, under the protection of the court's decision, were 
sold with impunity. To remedy this, the Wilson Act of 1890 was passed 
by Congress, providing that all liquors ''transported into any state, or 
remaining therein, for use, consumption, sale, or storage therein, shall, upon 
arrival in such state, be subject to the operation and effect of the laws of 
such state enacted in the exercise of its police powers, to the same extent 
and in the same manner as though such liquids or liquors had been pro- 
duced in such state." In 189 1 a prohibition law was pronounced consti- 
tutional under the Act,' as being enacted in the exercise of the state's police 
powers. The court based its decision on the ground that the Act gave no 
new powers to the states, but that it simply removed a restriction on their 
police powers which the silence of Congress (implying that Congress wished 
interstate traffic in that commodity to be untrammeled by State laws) had 
imposed upon them. 

If a state has the right to prohibit the sale of liquor entirely, it is but 
logical that it can allow that business to be carried on subject to such regu- 
lations as the public welfare demands. On these grounds, a law of South 
Carolina which gave the state officials a monopoly of the liquor traffic, was 
held to be within the Wilson Act.* Similarly the courts have upheld city 
ordinances (enacted under state laws) which exact license fees from all liquor 
dealers and impose on them other " regulations," even though these ordi- 
nances result in large revenues.* On the other hand a federal court in 
1899 held invalid a licensing ordinance, in which no provision was made for 
regulation or inspection in the interests of the public welfare. Such an 
ordinance, the Court said, was not a police measure and so not within 
the Wilson Act.* The reasoning of this case seems somewhat arbitrary in 
implying that a licensing act without " regulation " may not of itself be a 
police measure, since it may be a means of restricting or even prohibiting 
the sale of liquors. A broader view of the question has recently been taken 
by the United States Supreme Court. Fahst Brewing Co, V. Crenshaw, 25 
Sup. Ct Rep. 552. In this case, a Missouri "inspection law" providing 
for an examination as to the purity of all beer held for sale in the state was 
declared constitutional under the Wilson Act, although the fee exacted was 

^ Mugler V. Kansas, I2j U. S. 623. 

• Lelsy V. Hardin, i jc U. S. 100. 

• In re Rahrer, 140 If. S. 545. 

• Vance v. Vandercook, 170 U. S. 438 (1897). 

• Duluth Brewing and Malting Co. v. City of Superior, 123 Fed. Rep. 353 (1903). 

• Pabst Brewing Co. v. City of Tcrre Haute, 98 Fed. Rep. 330. 



54 HARVARD LAW REVIEW. 

much greater than was demanded by the somewhat inadequate inspectioa 
This stand of the court, though it rested in part on the fact that a state court 
had abready held the law valid as far as it applied to domestic beer, seems 
to show a tendency toward a broader interpretation of the term ** police 
powers," allowing the states to exercise more discretion in the control of 
the liquor trade. 



Carrier's Liability for Delay Caused by Strikes. — The reasons of 
policy which underlie the common law rule that a carrier is liable for loss 
of goods unless caused by act of God or the public enemy do not hold 
where the action is for delay in delivery. The fear of collusion between 
the carrier and robbers which led Lord Mansfield to enunciate the doctrine 
that a carrier is an insurer,^ had no application to delay, and a less strict 
rule of liability has therefore been applied. Where there is no express stip- 
ulation in the contract as to the time of delivery, a carrier is bound to 
deliver within a reasonable time under the circumstances, and where delay 
arises, the carrier is excused if it has exercised due diligence in the matter.* 
It would seem that this rule should apply to delays caused by strikes among 
its workmen, as it does to delays arising from other causes. In strikes 
unaccompanied with violence, a distinction must be made. If the strike 
is caused by a dispute as to wages, the carrier must pay whatever is neces- 
sary to retain its old employees or to obtain new ones to fill their places. 
It is under a public duty to run its trains regularly, and due diligence there- 
fore requires it to forward its freight at the earliest possible moment without 
regard to cost." But where it is unable, as in the case of a " sympathetic 
strike," to fill the places of its recusant employees at any advance in price, 
it should be excused for delay in the absence of negligence on its part. 

A doctrine, however, has gained currency by repetition, though supported 
by only two decisions* (one since weakened by a limiting decision), to the 
effect that a carrier is liable absolutely for a -delay which is caused by a 
strike unaccompanied with violence. These decisions proceed on the 
ground that the delay is caused by the misconduct of the carrier's agents, 
for which the former is liable under the doctrine of respondeat superior. 
They assume that a strike is always wrongful, which would negative the 
proposition that a man may, in the absence of agreement, terminate his 
employment when he wishes. But whether the strike is wrongful or not, 
how long can the acts of former employees impose liability upon their 
former principal? A principal is liable for the acts of its agents done in 
the usual course of their employment. But an employee by the very act 
of striking terminates his agency, so that he is no longer able, except under 
circumstances working an estoppel, to subject his principal to liability.* 
Consequently, there seems to be no reason for imposing upon the carrier a 
stricter liability than that which holds him to due diligence in avoiding 
delay. 

When violence is present in a strike, however, the courts have worked 

1 Forward v. Pittard, i T. R. 27. 

« Geismer v. Lake Shore, etc., R. R. Co., 102 N. Y. 563; Pittsburg, etc., R. R. Co. 
V. Hollowell, 65 Ind. 188. 

« People V, New York, etc., R. R. Co., 28 Hun (N. Y.) 543. 

* Read V. St. I^ouis, etc^ R. R. Co., 60 Mo. 199 ; Blackstock v. New York, etc, 
R. R. Co., 20 N. Y. 48 ; limited by Geismer v. I^ke Shore, etc., R. R. Co., supra, 

* Geismer v. Lake Shore, etc, R. R. Co., supra. 



NOTES. SS 

out a more logical result. As illustrated in a late case in the Texas Court 
of Civil Appeals, they hold that where a carrier uses all reasonable means 
to fill the places of striking workmen, and is prevented from forwarding 
freight only by the violent acts of the strikers, it is not liable for the delay. 
Sterling v. St. Louis^ etCy R. R. Co., 86 S. W. Rep. 655. Since the courts 
reach this result without adequately distinguishing the cases involving strikes 
without violence, it seems to constitute a tacit disapproval of the doctrine 
of those cases. 



Trover for Converted Money. — The rule of law which allows the 
owner of stolen property to succeed in an action of trover against a bona fide 
purchaser for value ^ must be qualified by exceptions in the cases of money 
and negotiable securities payable to bearer. It seems in these cases to be 
accepted law that a bona fide transferee is not liable, either in trover or in 
any other form of action, provided that he has in the technical sense given 
value for the securities or money.^ That the reason for the exception is 
obscure is evidenced by a recent decision of the Supreme Court of Indiana, 
which held, opposing the authorities, that where the maker of a note took 
it up with stolen money at a bank to which the payee's bank had forwarded 
it, the payee was liable in trover for the amount, though the money was 
received in ignorance of the theft, and the facts afforded evidence of value 
under the Indiana law. Porter v. Roseman^ 74 N. E. Rep. 11 05. 

The well-established exception made in the case of money and securities 
has been usually based on the ground of public policy, — that it would be 
a very serious hindrance to the conduct of business if negotiable securities, 
and above all, money, did not carry a clear tide to a bona fide transferee.' 
A more satisfactory line of reasoning, perhaps, is suggested by the theory of 
a German scholar. Prof. Heinrich Brunner, who argues that paper on its 
&ce payable to bearer, such as bank-notes and government certificates, 
passes title to its holder, who, by virtue of his very possession, being the 
bearer, becomes the legal owner, no matter how he may have come by the 
paper.* Though the theory is not in terms extended to coined money, 
the same must be true in that case, since the stamp of the government on 
a coin is a guarantee to the bearer, as such, of its value. If this is true, the 
action of trover would not be a proper one even against the thief. When, 
however, the bearer is a wrong-doer, he has in equity no right to keep either 
paper or coined money, and should be held a constructive trustee for the 
real owner. In allowing trover against the guilty holder of such a title, but 
denying redress against one who has acquired title in good faith, and is 
hence bound by no constructive trust, the courts seem unwittingly to have 
allowed an equitable remedy, with its characteristic equitable limitations, 
under the forms of a common law action.* 



Presumed Dedication of a Jus Spatiandi. — The unorganized public 
as such is incapable of acquiring interests in realty by deed ; consequently, 

1 White V. Spettiguc, 13 M. & W. 603. 

« Nassau Bank ». National Bank of Newburgh, 159 N. ¥.456; Wheeler v. King, 
35 Hun (N. y.) loi. 

» Miller v. Race, i Burr. 452. * 2 Endemann, Handbuch 163. 

* Cf. cases cited in Ames, Cases on Trusts, 2d ed., 10, n. 2. 



S6 HARVARD LAW REVIEW. 

where the legal fiction of a lost grant persists, the public cannot, strictly 
speaking, take by a prescriptive right. ^ This reasoning is recognized in 
England, since the Prescription Act of William IV. is held not to extend 
to easements in gross. ^ In that country, too, dedication to public pur- 
poses is yet in its infancy. Highways, bridges and squares are of course 
subjects of express dedication, and from adverse public user, generally for 
the period of the Statute of Limitations, English courts sometimes draw an 
inference of dedication or of condemnation by the proper authorities.' 
To find an actual dedication for purposes other than those mentioned, they 
demand strong evidence,* and the assertion is made, moreover, that from 
user merely for purposes of recreation and instruction, no right can be 
gained by the public.^ This statement of the law was affirmed by a recent 
English case which denied to the public any right in the ground^ covered 
by the ancient monuments at Stonehenge. Attorney-General v. Antrobus^ 
[1905] 2 Ch. 188. The road through private property to the stones was 
also said not to be a highway, but to be accessory to the monuments 
and dependent upon the same principles as the jus spatiandi in their 
neighborhood.* 

In this country courts are much more ready than in England to find 
actual dedication.^ It is also quite generally held that adverse user for the 
statutory period raises a conclusive presumption of dedication.' To this 
process the term prescription is often loosely applied. Indeed, where the 
analogy to the Statute of Limitations is adopted as the basis of prescription, 
the presumption of a grant or of dedication becomes unnecessary, and the 
term is perhaps properly applicable. In American as well as in English 
courts it has been stated that nothing but highways and the like can be ac- 
quired by adverse public user.* It is argued in support of this contention, 
first, that landowners should be encouraged in allowing access to private 
grounds attractive in themselves or by reason of some monument thereon," 
and second, that the user by the public is permissive and with no claim of 
right." These two considerations seem to apply indifferendy to all pre- 
scription, and to furnish no ground for a distinction. The second of them 
constitutes always a question of fact, but in the case of private prescription 
where there is found a twenty years' user without license, the court seldom 
appears to require explicit evidence as to the state of mind of the landowner 
or the trespasser. 

Whether an easement is for pleasure or for profit or whether a road is a 
highway or ends in public or in private property ** appears on theory to be 
unimportant when adverse user for the prescriptive period is found. The 

1 Washburn, Easements § 404 ; see Pittsburgh, etc., Ry. Co. v. Town of Crown Point, 
150 Ind. 536. 

« Shuttleworth V. Le Fleming, 19 C. B. (n. s.) 687. 

' Board of Works v, Mau<ulay, L. R. 5 Q. B. 397; Queen v. Inhabitants, 11 
Q. B. 877. 

* Tyne Improvement Commrs. w. Imrie, 81 L. T. R. 174- 

^ See Bourke v, Davis, 44 Ch. D. no ; Giant's Causeway Case, summarized in 32 
Ir. L.T. 211. 

^ See Campbell v, Lang, i Macq. H. L. Cas. 451 ; Young v, Cuthbertson, ibid. 455 ; 
EUiott, Roads and Streets i. 

' See 16 Harv. L. Rev. 332. 

> See State v, Kansas City, etc., R. Co., 45 la. 139 ; Schwerdtle v. County of Placer, 
108 Cal. 589; Commonwealth v. Coupe, 128 Mass. 63. 

» Post V. Pearsall, 22 Wend. (N. Y.) 425; 16 Harv. L. Rev. 128. 
*<* 69 J. P. 217. " Attorney-General v. Antrobus, supra. 

M Nichols V, State, 89 Ind. 298. 



NOTES, 57 

broad doctrine of prescription and the reasons of public policy supporting it 
are as easily applicable to the acquisition of any incorporeal right of use, 
convenience, or value to the public, as to the acquisition of any purely 
private rights. Yet it must be granted that although the presumed dedica- 
tion (based often on estoppel) of cemeteries and springs is not infrequent/' 
cases are exceedingly rare in either country where the public has gained a 
prescriptive right in the nature of a jus spatiandi. It seems likely that the 
common law courts will continue to show a disinclination to extend such 
acquisition beyond the established cases of highways, parks and squares. 



Tolling of Statute of Limitation by One of Several Obligors. — 
The doctrine that acknowledgment or part payment extends a debt or revives 
one barred, is a judicial engrafting upon the original Statute of Limitations of 
James I. It is now generally recognized that such payment or acknowl- 
edgment operates not as a waiver of the defense of the statute, continuing 
the cause of action, but as a fresh promise. Either view presents difiiculty 
as to consideration, but the case must be regarded as a lingering example of 
moral consideration supporting a promise.^ If, then, the theory is that of a 
new contract, there must exist circumstances from which an unequivocal 
promise can be inferred. Such a promise, therefore, can be made only by 
the party to be charged or his authorized agent. ^ Yet there has existed a 
great conflict, now partly allayed by statutes, as to the effect of payment by 
one of several persons having a community of interest. Thus, Lord Mans- 
field, in a leading case " now overruled by statute, held that payment by one 
joint obligor, for purposes of the statute, is payment by all ; while the United 
States Supreme Court has reached an opposite result, concurred in by a 
majority of the states.* There is a similar diversity of views as to the 
effect of part payment by a partner after dissolution of the partnership. 
Here, too, regarding the dissolved partners merely as joint obligors, the 
majority of the states deny one authority to revive or extend a debt against 
others. Some, however, follow the early English authority ; still others sanc- 
tion only an extension, not a revival, while a few make notice to the credi- 
tors a determining factor. The prevailing rule, which has recently been 
adopted in several states by statute, seems sound. Whether one person 
has power to bind another by his promise, express or implied, is a ques- 
tion of fact in each instance, but from the mere relationship of joint 
obligors no such agency can be inferred. 

It would seem that when the question arises through payments by one 
of several testamentary beneficiaries the same rule must guide, and part 
payment by one should affect only his own interest or that of those for 
whom he is authorized to act. Yet the English Chancery Division has 
recently held, in a case arising under a statute making a decedent's real estate 
assets in equity for simple contract debts, that part payment by a tenant for 
life of part of the estate bound persons who were both remaindermen and 

w Boyce v, Kalbaugh, 47 Md. 334; Larkin p. Ryan, 25 Ky. Law Rep. 613, 

1 See 16 Harv. L. Rev. 517. 

« Pavne v. Slate, 39 Barb. (N. Y.) 634, 638. 

* Wnitcomb v. Whiting, 2 Doug. 652. 

* Bell V. Morrison, i Pet. (U. S.) 351. 



58 HARVARD LAW REVIEW. 

devisees of other lands. In re Chanty [1905] 2 Ch. 225. By previous 
adjudication it has been decided in England that the life tenant, since it is 
his duty to keep down the interest on the estate, by virtue of his tenancy, 
has implied authority to bind those in remainder.^ No such identity of 
interest, with the resulting implication of authority, seems to be recognized 
in this country." But in going beyond this step and holding that payment 
by the life tenant keeps alive the testator's debt against the estate of specific 
devisees of other land the court followed what are in fact dicta in an earlier 
case which have been much criticised in later English decisions.'' Not even 
in England can one devisee, as such, deprive another of his statutory privi- 
lege.^ In this country payment by a widow of mortgaged premises has 
been held not to remove the bar as against the heir.® Again, payment by 
the heir or grantee of the mortgagor as to part of mortgaged premises does 
not arrest the operation of the statute in favor of the grantee of another 
part" Though American cases of this nature have been rare, they show a 
desirable uniformity with the cases of joint obligation, and a tendency to 
restrict the anomalous doctrine of part payment to its proper, narrow 
limits. 



RECENT CASES. 

Accord and Satisfaction — Validity — Effect of Statute of 
Frauds. — In consideration that the defendant marr}r him, the plainti£E orallv 
promised to consider a debt which the former owed him as paid and satisfiecf. 
After marriage the plaintiff brought action on the obligation and, to the defend- 
ant's plea of accord and satisfaction, objected that as the agreement was oral, It 
was invalid under the Statute of Frauds making contracts in consideration of 
marriage unenforceable. Held^ that the plea is good. Weldy. Weld, 81 Pac. 
Rep. 183 (Kan.). 

There are two possible views of the nature of an accord and satisfaction. 
The first is illustrated by the present case, which regards it as an executed 
agreement whereby the original obligation is utterly extinguished. Lavery v. 
Turleyt 6 H. & N. 239. The other Uieory holds that it is a contract executory 
as to the obligee's promise. He has agreed never to sue on his original obliga- 
tion which is considered as still existing; ; and this promise is enforced by courts 
of law as a defense to the original liability. This view is suggested by the rule 
that upon the rescission of the accord and satisfaction the original obligation 
may be sued upon. Heavenrick v. Steele^ 57 Minn. 221. However, as this rule 
is supported upon the ground that the extinguished obligation is revived by the 
rescission, it furnishes but slight basis for the second theory. Furthermore, as 
the plea of accord and satisfaction was recognized before a contract never to 
sue or indeed before any simple contract was known to the law, the theory that 
in allowing this defense the court is merely enforcing the plaintiff's promise 
not to sue, is clearly untenable. Y. B. 21 & 22 Edw. I. 586 (Rolls series). 

» Roddam v. Morley, i Dc G. & J. i ; In re Hollingshead, 37 Ch. D. 651. 

• iEtna Life Insurance Co. v. McNeely, x66 111. 540. 

^ Roddam v. Morley, supra. For a consideration of the English authorities, see 49 
Sol. J. 563, 682. 

> See Dickenson v. Teasdale, i De G. J. & S. 52 ; Cooper v. Cresswell, L. R. 2 Ch. 
112. 

• NickcU V, Leary, 91 N. Y. Supp. 287 ; iEtna Life Insurance Co. v. McNeely, 



tupra, 

10 V 



Murdock v. Waterman, 145 N. Y. 55; Mack v. Anderson, 165 N. Y. 529 



RECENT CASES. 59 

Adverse Possession — Life Tenant under Void Devise Holding 
AGAINST Remainderman. — A married woman, who was legally without testa- 
mentary capacity, devised certain land to her husband for life with remainder 
to the plaintifE. The husband entered at his wife's death and held possession 




and A occupies for twenty vears, it has been held that the true owner is barred, 
but that A is estopped to deny B's rieht to the remainder. Board y. Boards 
L. R. 9 Q. B. 48; Dalton v. FitigeroM, [1897] 2 Ch. 86. The present decision, 
which dbtinguishes between a valid will by a testator without title, and a void 
will by one having title, disregards the intention to claim only a life estate. See 
Paine \,JoneSy L. R. 18 Eq. 320, 326; but cf, Kemagkan v. M^Nalfy^ 12 Ir. 
Ch. 89. As it is the intention which determmes whether the possession is ad- 
verse, so it would seem that the intention should determine the quantum of the 
estate. Cf, Bendy. O'Gara, 1 77 Mass. 139. It would appear better not to invoke 
the doctnne of estoppel, but to regard the entry of the claimant as in the nature 
of a tortious feoffment, effecting a disseisin of the true owner and vestine in the 
disseisor a tortious life estate, with a tortious remainder in the person wnom he 
recognizes as remainderman. The owner, having been thus disseised, is barred 
after the statutory period, and the tortious estate becomes lawful. Under this 
doctrine the rights of the remainderman would be independent of any instrument 
purporting to convey title. 

Agency — Agent's Liability to Third Persons — Contractual Re- 
sponsibility WHEN Principal is Fictitious, t- The defendant, as agent for 
a non-existing corporation, took a lease under seal from the plaintiff. Held, 
that the agent is liable on the lease for the rent. Schmkberg v. Treadwell^ 
94 N. Y. Supp. 418. 

On strict theory this per curiam opinion seems difficult to support. By the 
weiffht of authority, when an unauthorized agent makes a contract for a prin- 
cipal actually existing, the agent is not liable on the contract. Lewis v. 
Nicholson, 18 Q. B. 503 ; Noe v. Gregory, 7 Daly (N. Y.} 283. When the 
principal is fictitious, however, the agent is often held liable on the contract, 
on the ground that otherwise it would be wholly inoperative. Kelner v. 
BaxUr,L. R. 2 C. P. 174. Yet in the real essence of the situation, there is 
litde difference between a principal who gives no authority and one who does 
not exist. See Bartlett v. Tucker, 104 Mass. 336. But here the instrument is 
under seal ; and however loosely a simple contract may be treated, the law is 
strict that only those named as parties to a sealed instrument can sue or be 
sued upon it. Henricus v. Englert, 137 N. Y. 488. There seems to be no 
urgent necessity for relaxing the rule in the case at hand, as an adequate 
remedy lies for deceit, or for breach of an implied warranty of authority. 
Polhill V. Walter, 3 B. & Ad. 114; ColUn v. Wright, 8 E. & B. 647. 

Bankruptcy — Preferences — Surrender. — At the suit of a trustee in 
bankruptcy, a mortgage given by the bankrupt to a creditor who retained it in 
good faith was adjudged void as a preference. Thereafter the trustee refused 
to permit proof 0/ the creditor's claim because the latter had not surrendered 
his preference within the meaning of § 572 of the Bankruptcy Act, which pro- 
vides in substance that claims of preferred creditors shall not be allowed unless 
they surrender their preferences. Held, that proof of the claim be allowed. 
KApel V. Tiffin Savings Bank, 25 Sup. Ct. Rep. 443. 

The lower federal courts have |;enerally held that a creditor who retains his 
preference until judgment depriving him of it cannot prove his claim since 
he has not '* surrendered *' his preference. Re Greth, 112 Fed. Rep. 978. 
A realization of the hardship of this result, however, induced some courts to 
suspend judgment for a reasonable time in order to enable a creditor who had 
acted in good faith to surrender his preference and thus to prove his claim. 
Zahm y. Fry, Fed. Cas. 18 198. In the present case, the court avoided penal- 
izing the creditor by construing the word *' surrender '' to mean the transfer of 



60 HARVARD LAW REVIEW. 

a preference after judgment. Undoubtedly the purpose of § 57g is not penal, 
but is to secure a fair distribution of the debtor's assets. See Pirie v. Chicago^ 
etc., Co.y 182 U.S. 438, 449. The interpretation which would effectuate this pur- 
pose without doing violence to the expressed intent of the legislature is best. 
And this consideration certainly goes £ur to justify the somewhat strained con- 
struction resorted to bv the court. It is, however, questionable whether this 
was not a case for legislative action rather than judicial construction. 

Bills and Notes — Negotiability — Certainty in Amount. — In an 
interest-bearing note it was provided that interest not paid semi-annually 
should become a part of the principal and itself bear interest. Held^ that the 
amount of the note is not therebv rendered uncertain, nor the negotiability of 
the note destroyed. Brown v. Vossen^ 87 S. W. Rep. 577 (Mo., Kansas tity 
Ct. App.) 

In order that a note shall be negotiable it must be for a sum certain. P aimer y. 
Ward, 72 Mass. 340. But this rule has been considerably weakened, and much 
uncertainty and confusion has arisen from a loose interpretation of the words 
"sum certain." At present the weight of opinion seems to be that a provision 
for increasing the rate of interest after maturity does not destroy negotiability. 
Towne v. Rice, 122 Mass. 67, Nor is negotiability impaired by a stipulation 
for payment of attornevs' fees and costs in case suit is brought to enforce col- 
lection. Adams v. Addington, 16 Fed. Rep. 89. But an agreement to pay a 
sum named " with exchange '^ is not negotiable. Hughitt v. Johnson, 28 Fed. 
Rep. 865. The distinction drawn is that the amount of the agreement at 
maturity depends on the fluctuations of exchange; while in the two former 
cases the amount is certain if paid at maturity. In the case at hand the amount 
of the note at maturity clearly depends on a contingency; to call it a sum 
certain seems a contradiction in terms. 

Carriers— Delay— Liability for Delay Caused by Strike.— //>/i/, 
that where cattle were injured in transportation by delay caused by the inter- 
ference of strikers, the carrier is not liable if it has exercised reasonable dili- 
gence to expedite the shipment. Sterling v. St, Louis, etc, R, R. Co., 86 S. W. 
Rep. 655 (Tex., Civ. App.). See Notes, p. 54. 

Carriers — Tickets— Ejection. — A contract between the parties pro- 
vided that the appellant should furnish transportation to the appellee, on condi- 
tion that the contract should be presented to and endorsed by the former's 
a^ent. The agent refused to endorse it. In conseauence, the appellee was 
ejected from the train for not paying his fare. Held^ that the appellant is 
liable for the ejectment. Texas, etc., Ry. Co. v. Payne, 87 S. W. Rep. 330 
(Tex., Sup. Ct.). 

Although there is a well defined conflict of authorities, the better opinion 
seems to be that the carrier is not liable for ejecting; a passenger who is without 
an apparently good ticket, if he refuses to pay his rare. See 9 Harv. L. Rev. 
353. This conclusion is reached either upon the basis of reasonable regula- 
tions, or by the application of the law of contracts. See 12 Harv. L. Rev. 61. 
The present decision is of interest because a formal written contract is involved 
instead of a mere ticket, and because the court bases its reasoning on principles 
of contract law. Yet it seems that in this case, at any rate, the opposite result 
would be reached by this method. The railroad company has promised to 
transport the appellee only on condition that the agent endorse the contract. 
This condition precedent has not happened; hence the company has not broken 
its promise of transportation. The conclusion is unavoidable ttiat the appellant 
is liable for its agent's refusal to endorse the contract, but not for the ejectment 
of appellee. See Frederick v. Marquette, etc., R, R. Co., 37 Mich. 342, 346. 

Chinese Exclusion Acts — Exclusion of Chinaman Claiming Citizen- 
ship. — The Chinese Exclusion Act of 1894, as amended by the Act of 1903, 
provided that the decision of the appropriate immigration officers excluding an 
alien should be final unless reversed on appeal to the Secretary of Commerce 
and Labor. The latter official denied admission to a Chinaman who alleged 



RECENT CASES. 6 1 

that he was a native-born citizen of the United States returning after a tem- 
porary absence, //eld, that the decision is not reviewable by the federal 
courts. Brewer, Day and Peckham, J J., dissented. United States v. Ju Toy, 
25 Sup. Ct. Rep. 644. 

The constitutionality of this power of the Secretary of Commerce in cases 
where the applicant is admittedly an alien, seems to be settled. Nishimura 
Ekiu V. United States, 142 U. S. 651, 659. It has also been held that an 
applicant claiming citizenship cannot resort to the federal courts before he has 
prosecuted an appeal to the Secretary. United States v. Sing Tuck, 194 
U. S. 161 • It is clear that the constitutional guaranties relating to the trial of 
criminals have no application, as the inquiry is not a criminal proceeding. 
Cf. Fong Yue Tingv, United States, 149 U. S. 698. A more serious question 
is whether Congress has not invested executive officials with power properly 
belonging to the judiciary and contravening the requirement of due process of 
law. It nuiy be that the power to exclude or expel persons admittedly aliens 
is political in its nature, and the official's decision in reeard to such persons is 
due process of law. Japanese /mmi^ant Case, 189 U. S. 86. But if the 
applicant be in fact a citizen of the Umted States, he cannot be excluded except 
as a punishment for crime. See /n re Sing Tuck, 126 Fed. Rep. 386, 388; 
Lee Sing Far v. United States, 94 Fed. Rep. 834, 836. It would seem, there- 
fore, that the determination of his constitutional right of citizenship is a judicial 
and not an executive function. 

Conflict of Laws — Priority among Successive Assignees in Dif- 
ferent Jurisdictions. — A, while domiciled in New York, assigned to B 
his reversionary interest in an estate invested in English trust securities. 
Later, while in England, A assigned this reversionary mterest to the plain- 
ti£F, who at once notified the trustees. Afterwards B gave notice of the earlier 
assignment, //eld, that the plaintiff has the priority. Kelly v. Selwyn, [1905] 
2 Ch. Rep. 117. 

The question here involved seems to have arisen for the first time. Bv New 
York law, notice to a debtor or to a trustee is not necessary to complete an 
assignment of a chose in action or of a reversionary interest in personalty. 
Mmr V. Schenck, 3 Hill (N. Y.) 228; Fortunate v. Patten, 147 N. Y. 277. 
But in England, a subsequent assignee secures preference if he gives notice 
first to the debtor or trustee, provided he had no notice of the prior assign- 
ment. Dearie v. //all, 3 Russ. i ; Foster v. Blackstone, i Myl. & K. 297. The 
court admits that the New York assignment was valid in accordance with the 
general rule that the validity of an assignment of a chose in action is deter- 
mined by the law of the place of transfer. Alcock v. Smith, [1892] i Ch. Rep. 
238 ; May v. Wannemacner, 1 1 1 Mass. 202. But it takes the sound view that 
in administering an English trust fund, the order in which claimants will be 
entitled must be regulated by the law of the court administering the fund. 
Those claiming as assignees, therefore, will have priority according to the 
order in which they have given notice and thereby have completely constituted 
themselves cestuis que trust under the English law. 

Conflict of Laws — Jurisdiction for Divorce — Non-Resident De- 
fendant. — An abandoned spouse removed to another state, where he acquired 
a bona fide domicile, and later instituted divorce proceedings. Substituted ser- 
vice ot process was made upon the non-resident defendant in accordance with 
the laws of the state granting the divorce, //eld, that the decree of divorce is 
entided to full extra-territorial validity under the " full faith and credit *' clause 
of the Federal Constitution. North v. North, 93 N. Y. Supp. 512. 

The New York courts reeard divorce as a proceeding in personam. People 
V. Baker, 76 N. Y. 78. Thev have consistently held that no foreign divorce 
obtained against a non-resiaent, non-appearing defendant would have extra- 
territorial validity, unless the defendant was oersonally served with process 
within the jurisdiction of the divorce court. &Dea v. CDea, loi N. Y. 23. 
So serious are the objections to this doctrine, tiiat most courts have rejected it 
as unsound. See 15 Harv. L. Rev. 66; 18 ibid, 215. The rule has been 



62 HARVARD LAW REVIEW. 

modified by a recent decision holding that where an abandoned spouse sues in 
the state of the last matrimonial domicile, and substituted service was made 
upon the non-resident defendant, divorce so procured is entitled to extra- 
territorial validity under Art 4, § i of the Federal Constitution. Atherton v. 
AthertOH^ 181 U. S. 155, reversing s. C, 155 N. Y. 129. The present decision 
is a further extension of this rule to the case where the abandoned spouse 
sues in another state in which he has acquired a bona fide domicile. The 
reasons which underlay the former decision would seem to hold equally here, 
and the case marks an important development in this branch of the New York 
law. 

Constitutional Law — Due Process of Law — Right of Stockhold- 
ers TO Elect Directors. — A minority stockholder prayed for a decree en- 
joining the Equitable Life Assurance Societv from amending its charter so as 
to allow its policy holders to elect twenty-eight out of fifty-two directors. Hebit 
that the right to mfluence the management of a company by the selection of its 
directors is a property right, of which the amendment would deprive the plaintiff 
without due process of law, and that the motion should therefore be granted. 
Lord V. Equitable^ etc.^ Society, 94 N. Y. Supp. 6$, 

This decision seems to flow naturally from two established doctrines. The 
right of a stockholder to vote is an essential part of his property right in the 
stock. Kinnan v. Sullivan County Club, 26 N. Y. App. Div. 213. And it is 
unconstitutional to deprive an owner of any essential attribute of his property 
without due process of law. Matter of Jacobs , 98 N. Y. 98; People y, Otis, 
Qo N. Y. 48. The defendants cited two cases : one holding valid a statute al- 
lowing cumulative voting for directors, the other sustaining a statute which 
increased the proportion of railroad directors to be elected by a municipal stock- 
holding corporation, the original allotment havine become unjust because of 
the failure of several subscribers to pay in their subscriptions. Looker v. May- 
nardy 179 U. S. 46; Miller v. State, 15 Wall. (U. S.) 478. These cases are 
not exactly in point. One regulates the property right of voting one's stock ; 
the other restores the conditions of proportionate division of directors under 
which the plaintiffs had subscribed. The mutualization would take out of the 
control of the stockholders the surplus in which they have a right to share, 
and would, therefore, be a " taking of property without due process." For a 
more extended discussion of the case, see 17 Green Bag 353. 

Constitutional Law — Eminent Domain — Land Taken for Pri- 
vate Irrigation Ditch. — Held, that a state statute authorizing a landowner 
to condemn a right of way over adjoining land for the construction of an irriga- 
tion ditch to supply water for his own land, is constitutional. Clark v. Nash, 
198 U. S. 361. 

The court, in affirming the decision of the Supreme Court of Utah, bases its 
opinion wholly upon the peculiar agricultural conditions in that state. For a 
discussion of the principles involved, see 17 Harv. L. Rev. 493. 

Constitutional Law — Personal Rights — Freedom to Contract. — 
A statute made it obligatory upon any person or corporation issuing in payment 
of wages an order upon its store for goods to redeem such order in lawful 
money or goods at the option of the holder. Held, that this statute is uncon- 
stitutional. Leach v. Missouri, etc., Co., 86 S. W. Rep. 579 (Mo., Ct. App.). 

A like statute has been declared constitutional by the Supreme Court of the 
United States upon the ground that it is a valid exercise of the police power. 
Knoxville Iron Co. v. Harbison. 183 U. S. 13. The purpose of such legis- 
lation is to protect workmen from unscrupulous exactions. Undoubtedly 
where the laborer is at a great disadvantage in bargaining with his employer 
such protection is desirable and may be justified under the police power. But 
whenever the situation of the employee, due to industrial conditions such as 
the scarcity of labor or the strengtn of trade unions, is such that he can 
adequately protect his interests, state interference would be unnecessary. 
Under these conditions statutes aimed to accomplish this purpose, not being 
justified as an exercise of the police power, would be unconstitutional as aq 



RECENT CASES. 63 

interference with the liberty to contract. See In re Preston^ 63 Oh. St 428, 
438. The constitutionality of such a law, therefore, would depend in each 
case upon the question of fact as to the local industrial conditions. 

CoKTRACTS — Defenses : Non-Performance by Plaintiff — Repu- 
diation AS Waiver of Valid Defense. — The defendant, on insufficient 
grounds, repudiated a contract to buy goods in two installments. The plaintiff 
thereafter made tender of the goods. Held^ that by repudiating, the defendant 
bars himself from setting up the defectiveness 01 the first installment, sub- 
sequently discovered, as a defense. Braithwaite v. Foreign Hardwood Co., 
21 T. L. R. 413 (Eng., C. A.). 

According to the recognized English doctrine regarding anticipatory breach, 
the innocent party, by not acting on the repudiation, treats the contract as still 
existing, and holds the other party to its performance. See 14 Harv. L. Rev. 
317, 422. In such a case the only effect of the repudiation is to free the plain- 
tiff from liability for any failure on his part directly caused by the defendant's 
repudiation. See Cort v. Ambergatey etc, Co,, 17 Q. B. 127. In all other 
respects the repudiator may avail himself of all rights under the contract. 
Smith V. Georgia Loan Co,, 113 Ga. 975. In the principal case the plaintiff 
clearly treated the contract as subsisting. If, then, the defendant had a de- 
fense, as the trial judge seemed to admit, because of the defectiveness of the 
first consignment, he should not be barred from settin? up such valid defense 
bv previously asserting an untenable ground for repudiation. See In re Lon- 
don, etc., Bank, L. R. 7 Ch. 55. This is true for the reason that the plaintiff 
must broadly aver performance of all conditions, express and implied, and under 
the supposed facts he cannot sustain his allegation. Green v. Edgar, 21 Hun 
(N. Y.) 414. Whether the plaintiff's breach of improper shipments would have 
warranted the defendant in treating the contract broken, on his part, was a 
question of fact which should be dependent on the materiality of the breach, 
of which the element of in limine was an important consideration. See 18 
Harv. L. Rev. 61. 

Corporations — Foreign Corporations — Right of Action against. 
A New Jersey statute requires foreign corporations wishing to do business 
in the state to designate an agent to receive service of process in actions against 
the company. Held, that service on the agent after the company has ceased 
doing business in the state gives the court jurisdiction over the corporation. 
Groel V. United Electric Co., 60 Atl. Rep. 822 (N. J., Ch.). See Notes, p. 52. 

Corporations — iNSOLvfeNCv of Corporation — Right of Simple Con- 
tract Creditor to Appointment of Receiver. — Held, that a creditor 
of a corporation, who has not reduced his claim to judgment, cannot main- 
tain a suit for the appointment of a receiver, although all the assets of the cor- 
poration have been distributed among its individual members. McKee v. City 
Garbage Co., 103 N. W. Rep. 906 (Mich.). 

The general rule is that a creditor is not entitled to the appointment of a 
receiver until he has secured a judgment and exhausted his remedy at law by 
having an execution issued and returned unsatisfied. Adee v. Bigler, 81 N. Y. 
349. Some courts, however, have departed from this rule in cases where the 
assets of an insolvent corporation were in danger of being lost or fraudulently 
disposed of by its officials, and the remedy at law was inadequate. Cf. Ken- 
tucky, etc., Ass'n v. Galbreaith, 77 S. W. Rep. 371 ; Doe v. Northwest, etc., 
Co., 64 Fed. Rep. 928. These decisions have, in some instances, been rested 
upon the theory that the assets of a hopelessly insolvent corporation are a trust 
fund for the benefit of its creditors ; while other courts have proceeded upon 
the eround of the danger of loss to the creditors and the evident inadequacy of 
the legal remedy. This departure from the general rule would seem a legiti- 
mate extension of equity's jurisdiction in accordance with the fundamental 
principle that equity grants relief where the remedy at law is inadequate. 

Dedication — Nature and Scope — Presumed Dedication of Jus 
Spatiandi. — Held, that by user alone the public cannot acquire the right to 



64 HARVARD LAW REVIEIV. 

visit an historic monument on private grounds or to use a way leading to it 
through the owner's premises. Attorney 'General v. Antrobus^ ['905] 2 Ch. 
188. See Notes, p. 55. 

Executors and Administrators — Rights, Powers, and Duties — 
Power to Sell is not Power to Mortgage. — Executors, authorized to 
sell land, mortgaged it to the defendant, who had full knowledge of the facts. 
Held, that the estate is liable in equity to pay the mor^rase debt. One judge 
dissented. Thomas v. Provident Life &* Trust Co., 138 Fed. Rep. 348 (C. C. A., 
Ninth Circ). 

A power to sell imports a power to sell '* out and out,*' and will not justify a 
mortga^^e without positive evidence of such an intention. Feny v. LaibUy 31 
N. J. Eq. 566; Hoyt v. Jaques, 129 Mass. 286. This is because the testator's 
intention was to enect a conversion of the property. Haldenby v. Spoffarth, 
I Beav. 390. A sale is essentially distinct from incurring an indebtedness, and 
so it is said a power to sell negatives a power to mortgage. Bloomer v. Wal- 
dron, 3 Hill (N. Y.) 361, 368. But where the object clearly was that the 
property should be kept intact, subject only to raise a sum of mone;^ for a par- 
ticular purpose, it is sometimes said that a power to sell will authorize a mort- 
gage. Loebenthal V. Raleigh^ 36 N. J. Eq. 169. No such purpose, however, 
appears here, and the case, therefore, seems squarely opposed to the general 
rule. The only basis found for the decision is a dictum by Lord Macclesfield, 
to which the subsequent cases in point are traceable. Mills v. Banks, 3 
P. Wms. I ; see 2 Chance, Powers, London ed. 183 1, 388. 

Highways — Rights of Abutters — Right to Shade Trees. — The de- 
fendant negligently destroyed shade trees planted in front of the plaintifiPs prop- 
erty by his predecessor in title. The plaintiff did not own the fee of the street, 
but the jury found that the market value of his property had been diminished. 
Held, that the plaintiff can recover. Three justices dissented. Donahue v. 
Keystone Gas Co,, 181 N. Y. 313. 

In jurisdictions which hold that the abutter owns the fee of streete, he obvi- 
ously has title to shade trees growing therein and can recover for injuries to 
them. Phi/erw, Cox, 21 Oh. St. 248. Where the fee is by statute or charter 
vested in the municipal corporation, courts have held that aoutting owners have 
in the street rights to light, air and access. Abendroth v. Manhattan Ry. Co., 
122 N. Y. I. This right is defined as in the nature of an easement arising by 
operation of law by virtue of the proximity of the abutting property to the street. 
See ICane v. New York Elevated R. R, Co., 125 N. Y. 164, 180. The principal 
case extends this doctrine and follows an earlier decision in which the plaintiff 
recovered for injuries to trees which he himself had planted. See Lane v. 
Lamke, 53 N. Y. App. Div. 39c. The existence of this so-called easement, 
though dependent on the Jlat of the court, seems to be practically desirable. 
The unlawful cutting of shade trees in a highway is deemed in equity irrep- 
arable injury. Cf. Tainterw, Mayor of Morris towft, 19 N. J. Eq. 46^ 58. The 
requirement that the abutter must have sustained peculiar damage in addition 
to that suffered by the public is supplied by the diminution in the market value 
of his property. 

Infants— Unborn Children — Rights of Posthumous Children 
under Civil Damage Laws. — Held, that an act giving a right of action to 
any person damaged in his means of support in consequence of the unlaw- 
ful sale of liquor applies to a child bom after the death of its father resulting 
from such sale. State ex rel. Niece v. Soale, 74 N. E. Rep. nil (Ind., 
App. Ct.). 

An unborn child has been uniformly denied a right of recovery for physical 
injuries negligently caused before birth. Allaire v. .5V. Luke^s Hospital, 184 111. 
359. Nor IS such an infant regarded as a '* person'* under statutes similar to 
Lord Campbell's Act allowing suit by representatives of deceased persons. 
Gorman v. Budlong, 23 R. I. 169. These decisions are based on the ground 
that such a child is part of its mother. See Dietrich v. Inhabitants of 
Northampton, 138 Mass. 14. It has been argued, however, that logical con- 



RECENT CASES. 6$ 

sistency may be maintained by predicating a ri^ht to bodily integrity upon birth, 
a breach of which, though previously occasioned, does not arise until after 
parturition. See 15 Harv. L. Rev. 313. However, statutes permitting chil- 
dren to recover for loss of support throue^h death of their father are construed 
to apply to posthumous children. The right of support is regarded as a 
property right, and the analogv of cases, allowing unborn children equal 
property rignts with living children, is followed. Cf. Quinlen v. Welch, 69 
Hun (N. Y.) 584. While the principal case gives *♦ person " a latitude it has 
not heretofore received, it is a statutory construction which does not encounter 
the objection of policy that would confront a recognition of tlie right to bodily 
integrity. 

Injunctions — Nature and Scope of Remedy — Illegality as Af- 
fecting Plaintiff's Rights. — The plaintiff collected continuous quotations 
from the floor of its produce exchange, and under a contract with a telegraph 
company distributed them to subscribers only. The defendant, though not a 
subscriber, in some way procured and was distributing plaintiff's quotations. 
Held^ that he will be restrained from so doing. Board of Trade of Chicago v. 
Christie Grain and Stock Co.^ 25 Sup. Ct. Rep. 637. 

The jurisdiction of equity to protect such property as market quotations or 
news items has already been recognized. Exchange Tel. Co, v. Gregory &* Co,j 
(1896), I Q. B. 147 ; National Tel. News Co, v. Western Union TeL Co., 119 Fed. 
Rep. 294. Several federal courts, however, have hitherto refused relief to this 
plaintin on the ground that it was violating an Illinois statute against maintain- 
m^ a place where the pretended buying and selling of stocks or produce is per- 
mitted. Board of Trade of Chicago w, O'Dell Com. Co., 115 Fed. Rep. 574; 
Board of Trade of Chicago v, Donovan Com. Co,, 121 Fed. Rep. 10 12. The 
Supreme Court concludes that such is not the case, and adds that even though 
it were, the fact would not be a defense to the present suit. This may be be- 
cause the property right claimed is distinct and separate from any possible 
illegality in the conduct of the business. See Fuller v. Berger, 120 Fed. Rep. 
274 ; 16 Harv. L. Rev. 444. A further defense is disposea of by the holding 
that the contract of the plaintifT with the telegraph company is unnecessary 
to the course of action ; but even if requisite it is said not to be in aid of a 
monopoly or in restraint of trade, as urged by the defendant 

Interstate Commerce — Intoxicating Liquors — Wilson Act of 
1890. — A Missouri statute imposed a fee for an inspection of all intoxicating 
liquors within the state. As the cost of inspection was considerably less than 
the fee, the act produced a large revenue. Held, that under the Wilson Act 
the statute is not unconstitutional as applied to beer shipped from another 
state. Pabst Brewing Co, v. Crenshaw, 25 Sup. Ct. Rep. 552. See Notes, 
P-53- 

Landlord and Tenant — Eviction — Act Done by Landlord as 
Owner of Adjoining Premises. — The defendant leased a house and lot to 
the plaintiff for the purpose of conducting a saloon. Later, by virtue of his 
ownership of adjoining lots, the defendant signed a protest and prevented the 
plaintiff from obtaining a license. Held, that this does not constitute a con- 
structive eviction. Kellogg v. Lowe, 80 Pac. Rep. 458 (Wash.). See Notes, 
p. 50. 

Limitation of Actions — New Promise and Part Payment — Effect 
OF Payment by Life Tenant as against Remaindermen and Dev- 
isees. — The defendants were at once remaindermen after a life estate under a 
will, and devisees of other property. Held^ that under a statute making real 
estate assets for simple contract debts of the deceased, part payment by the 
tenant for life under the will tolls the statute of limitations as against the 
defendants. In re Chant, [1905] 2 Ch. 225. See Notes, p. 57. 

Municipal Corporations — Liability for Torts — Defective 
SCHOOLHOUSE. — The plaintiff, a pupil in a public school, sued the city for 



66 HARVARD LAW REVIEIV. 

dama£;e suffered by falling from a negligently constructed stairway in the 
school building, iteldj that she cannot recover. Clark v. City of //icholas' 
vilU,^7 S. W. Rep. 300 (^Ky., Sup. Ct.). 

In determining a municipal corporation's liability, courts make an important 
distinction between governmental and ministerial functions. For damage due 
to negligent exercise of the former, no common law liability exists. But in the 
case of the latter, the corporation is treated like a private person. See Dill, 
MuNic. Corp., 4th ed., § 949; 15 Harv. L. Rev. 736. Thus a town is not 
liable for damage caused by faulty construction in a hall where a town-meeting 
is being held. Eastman v. Meredith^ 36 N. H. 284. But it is liable for damage 
caused in a like manner when the building has been rented. Warden v. City 
of New Bedford^ 131 Mass. 23. Though easily stated and illustrated, this 
principle is often difficult to apply. The authorities are not agreed as to what 
acts should be considered governmental. The maintenance of schools was 
certainly no part of the original conception of government. As conditions 
change, however, the state assumes new duties which become a part of its 
system of government conceived in a broad sense. The carrying on of schools 
may well be considered one of these new functions. What authority there is 
seems to be in harmony with this view. See Sullivan v. City of Boston^ 126 
Mass. 540; Wixon v. City of Newport^ 13 R. I. 454. 

Release — Construction and Operation — Debts Due Releaser 
UNDER Alias. — The defendant became indebted to the plaintifiF, in two sets 
of transactions, the plaintiff figuring under his own name in one, and under an 
assumed name in the other. The defendant did not suspect the identity of bis 
creditors. The plaintifE executed to the defendant a release, under his proper 
name, of all claims, but made no mention of his transactions under the alias. 
Heldy that as the plaintiff had appeared in person to the defendant when he 
executed the release, it discharged all the debts due the plaintiff both in his 
proper name and under his assumed name. Klopot v. Metropolitan Stock 
Exchange^ 74 N. E. Rep. 569 (Mass.). 

We are concerned with the construction of a written document, the terms of 
which cannot be varied by parol. Goss v. Ellison, 136 Mass. 503. There is 
no ambiguous word or phrase. The debts were certainly all due to the plain- 
tiff, thereby falling under the description in the instrument. Even though the 
circumstances showed conclusively that the parties contemplated only a release 
of the debts incurred to the plaintiff under his proper name, the words of the 
document cannot be held to express this restriction as a fair secondary mean- 
ing. It is improbable, also, that the plaintiff could obtain any relief in equity, 
as the mistake which he made was one of law, concerning the effect of the 
written release. Cf Durantv, Bacot, 13 N. J. Eq. 201. 

Release — Construction and Operation — General Words Limited 
BY Particular Recitals. — The plaintiff, the victim of a collision, accepted 
a certain sum from the defendant railway and executed a release in which, after 
enumerating all the injuries of which he was aware, he discharged the defendant 
from all claims of any kind whatsoever for "the injuries and damages sus- 
tained" and for any results arising or to arise therefrom. Injuries more serious 
than those enumerated subsequently came to light, and for these the plaintiff 
brought suit. Held^ that the release is no bar to his action. Texas ^ etc.y 
Ry, Co. V. Dashielly 25 Sup. Ct. Rep. 737. 

A general release is construed strongly against the releaser and cannot be 
varied by parol evidence that only certam claims were known to the parties. 
Kowalke v. Milwaukee^ etc, Co.,, 103 Wis. 472. It has been intimated that 
equity will confine such a general release to claims of which the parties were 
aware. See Blair v. Chicago, etc., Rd. Co,, 89 Mo. 383. This should perhaps 
be limited to cases where there has been fraud or mutual mistake whereby un- 
foreseen consequences were included. Kirchnery, New Home, etc, Co., 135 
N. Y. 182. But since all parts of a written instrument are construed together, 
general words of release following a statement of certain liabilities are usually 



RECENT CASES. 67 

governed by the particular recitals, so that demands not mentioned stand undis- 
charged. Toddw. Mitchell^ 168 111. 199. The principal case, though construing 
*^ the injuries sustained " as ** the injuries enumerated/' goes upon this broader 
ground. Some courts except from the discharge only entire causes of action 
and allow no splitting up of any one suit. Quebe v. Gulf^ etc., Ry, Co,, 
81 S. W. Rep. 20. Others, with the decision at hand, allow subsequent 
recovery for injuries forming part of the same cause of action with tnose 
enumerated. C/nwft Pacific Ry. Co. v. Artist, 60 Fed, Rep. 365. The strict 
construction is severe upon the releaser, but on the whole seems much safer 
in practice. 

Stare Decisis — Overruled Decision — Interference with Light 
AND Air by Elevated Railroads. — After the New York Court of Appeals 
had decided that damage to easements of light and air pertaining to premises 
adjoining a highway constituted a " takiner of property," the plaintiff bought 
land in New York City and erected a building thereon. Later the defendant 
began operating an elevated railroad in front of the plaintiff's premises. A 
decree was entered enjoining the use of this railroad unless damages were 
paid. From an adverse decision of the Court of Appeals dissolving the in- 
lunction, this appeal was brought. Held, that the plainti£F has a vested 
mterest which cannot be impairea without compensation. Fuller, C. J., White, 
Peckham, and Holmes, J J., dissented. Muhlkerw. New York, etc., R. R. Co., 
197 U. S. 544. 

The court based its decision on the ground that when the plaintiff acquired 
title the law of New York assured him that his easements were protected. 
LaMr v. Afet. Ei. R. R. Co., 104 N. Y. 268. The dissenting opinion, however, 
points out that it is questionable whether the plaintiff's property rights were 
mfringed, as his easement of access was not interfered with. If, as seems 
likely, the New York court might originally have decided the question either 
way without encountering constitutional objection, there is force in the dis- 
senting argument that it can now distinguish the plaintifiTs case so as to 
limit the earlier doctrine. If, however, the case falls within the principle of 
Lahr v. Afet. Ei. R. R. Co., the decision is perfectly sound. The Supreme 
Court has already held that it will follow a state decision in reliance on which 
persons have made commercial contracts, though such decision has been sub- 
sequently overruled. Gelpcke v. Dubuque, i Wall. (U. S.) 175. The court 
hereby makes an important extension of this doctrine of stare decisis to rights 
of easements acquired under judicial decisions which have thereafter been ad- 
versely passed upon. See 15 Harv. L. Rev. 667. 

Taxation — Property Subject to Taxation — Trade-Mark of a 
Foreign Corporation. — A New Jersey corporation, in carrying on its busi- 
ness in New York, used a valuable trade-mark, which was taxed there as a part 
of its capital stock. The corporation objected on the ground that the trade- 
mark, being intangible, existed only at its domicile in New Jersey. Held, that 
the assessment is correct. People ex rel. Spencerian Pen Co. v. Kelsey, 93 
N. Y. Supp. Q7I. 

It is settled that intangible as well as tangible property is subject to taxation. 
Carroll v. Perry, 4 McLean (U. S.) 25. The difficulty is in assigning the 
property to some situs. The practical method and the tendency of the law are 
to tax intangible property at the place where it is used in connection with tan- 
gible property. Adams Express Co. v. Ohio State Auditor, 166 U. S. 185. See 
17 Harv. L. Rev. 248. Tnus, the prevailing view is that good-will is taxable 
within the state where it is exercised. People ex rel. Journey, etc., Co. v. ' 

Roberts, yj N. Y. App. Div. i. On the other hand, this same case holds that ! 

copyrights and patents, granted by the United States, are not subject to state j 

taxation. Should the Federal Government, through its power over interstate 
commerce, assume a stricter control over trade-marks, it might well be urged j 

that they should be classed with copyrights and patents. See Am. Bar Ass. 
Rep., 1904, 547. As at present considered, however, a trade-mark is merely 
an element in a firm^s good-will. The court, therefore, seems warranted in 



68 HARVARD LAW REVIEW. 

extending the generally accepted doctrine of taxing good-will to the taxation of 
trade-marks in the state where they are used. 

Torts — Interference with Business — Inducing Breach of Con- 
tract. — The executive council of the appellant union, which the membere 
had asked for advice, ordered a holidav in order indirectly to raise the wages of 
members, but without ill-will toward tneir emplovers, the appellees. In conse- 
quence, the employees left work, in violation of their contracts. Held, that the 
union is liable for the resulting damage. South IVales Miners'* Federation v. 
Glamorgan Coal Co,, [1905] A. C. 239. 

This decision is an affirmation by the House of Lords of the decision in the 
Court of Appeal, which was favorably commented upon in 17 Harv. L. 
Rev. 63. 

Trover and Conversion — What Constitutes Conversion — In- 
nocent Holder op Converted Money. — The maker of a note took it up 
with stolen money at a local bank, and the amount, but not the identical funds, 
was forwarded to a distant bank, where the payee had deposited the note for 
collection. Held, that the payee has converted the money. Porter \. Roseman, 
74 N. E. Rep. 1105 (Ind., Sup. Ct.). See Notes, p. 55. 

Trusts — Liabilities of Third Parties — Deposit to his Personal 
Account of Check Made Payable to Trustee. — An embezzling trustee 
deposited to his personal account in the defendant bank a check payable to 
him as trustee. Held, that the bank was not thereby put on inquiry, so as to 
render it liable for the embezzled moneys. Batchelder v. Central National 
Bank, 188 Mass. 25. 

No court, certainly, could hold that, before cashine a check payable to a 
trustee, a bank must satisfy itself that the trustee will deal legitimately with 
the proceeds. See National Bank v. Insurance Co,, 104 U. S. 54, 63. But it 
does not follow that the bank may safely credit the check to the trustee's per- 
sonal account. In the first case the proceeds may be used either in cash dis- 
bursements for the benefit of the trust estate, or to satisfy a debt of the estate 
to the trustee. In the second case, the former alternative is pretty conclusively 
negatived. Nevertheless, the chances, in such a case, that the trustee is acting 
dishonestly are hardlv great enough to warrant a rule of law that would so 
seriously interfere with the freedom of the commonest form of banking transac- 
tions. The court, therefore, seems justified in not assimilating the case to the 
rule in regard to the sale of promissory notes payable to, or the pledge of stock 
standine in the name of, trustees. See Third National Bank v. Lange, 51 Md. 
138 ; Snaw v. Spencer, 100 Mass. 382. Cf, Ashton v. Atlantic Bank,Ss Mass. 
217. 

Wills — Mistake — Conclusiveness of Recital in Will as to 
Amount of Advances. — A testator, after reciting in his will that a son owed 
him jfsooo, forgave him all but j£3ooo, and directed that the portion of this 
amount remaining unpaid at his death should be deducted from the son's share. 
In fact only £^ had been advanced, and nothing repaid. Held, that only ;i^8o 
can be deducted. /// re Kelsey, 49 Sol. Jour. 701 (Eng., Ch. D., Aug. 2, 1905). 

This decision raises a question upon which the authorities are m conflict. 
One line of cases, following the general rule that a duly executed will cannot 
be modified because of mistake, hold that the recital in the will of the amount 
of advances removes the necessity of resorting to extrinsic evidence and is 
conclusive. In re Wood, yi Ch. D. 517 ; AfcAlisUr v. Butterfield, 31 Ind. 
25. The opposing cases lay stress upon the general purpose of the will to 
divide the estate equally among the heirs and, disregarding the recital of the 
amount as repugnant to such purpose, admit evidence to show what has actuallv 
been advanced. In re Taylor^s Estate, 22 Ch. D. 495. Although the latter 
view more nearly approaches the real intention of the testator, yet it would 
seem unsupporuble on principle. As the will is clear upon its face in explicitly 
stating the amount of the advance, it is difficult to see on what grounds evi- 
dence can be admitted to prove the misUke. Cf. Guardhouse v. Blackburn, 
L. R. I P. & D. 109. 



BOOKS AND PERIODICALS, 69 

Wills — Revocation — Divorce of Bkneficiaky from Testator. — A 
testator beaueathed a legacy to his wife describing her as such. After the 
execution of the will, but two years before the testator's death, the wife pro- 
cured a decree of absolute divorce from him. Held^ that the will is not im- 
pliedly revoked by the change of circumstances. Mitchell, C. J., dissented. In 
re Jones' Estate, 60 Atl. Rep. 915 (Pa.^. 

The English and American courts hold that a will is revoked by the subse- 
quent marriage of the testator and the birth of issue, and that the revocation 
cannot be prevented by proof of extrinsic circumstances negativing the exist- 
ence of the intention to revoke. Marston v. Roe, 8 Ad. & E. 14 ; Nutt v. 
Norton, 142 Mass. 242. Several American decisions have refused to imply 
a similar revocation from the fact of divorce. Charlton v. Miller, 27 Oh. St. 
298 ; Card v. Alexander, 48 Conn. 492. The opposite result was reached in 
a Michigan decision, where, however, the court relied somewhat on the fact 
of a setflement made by the parties subsequently to the decree of divorce. 
Lansing v. Haynes, 95 Mich. 16. To permit evidence of circumstances occur- 
ring after the divorce to determine the validity of the will would not harmonize 
wi£ the previously stated doctrine of implied revocation by marriage. More- 
over, neither the mference of a change of intention nor the grounds of public 
policy are sufficiently clear to warrant the introduction of a doctrine of implied 
revocation as a matter of law from the fact of divorce. 



BOOKS AND PERIODICALS. 

I. LEADING LEGAL ARTICLES. 

Constitutionality of General Arbitration Treaties. — In an article 
under this title Mr. Everett P. Wheeler makes a report in behalf of a committee 
of the American Bar Association, sustaining the constitutionality of general 
arbitration treaties. The Constitutionality of General Arbitration Treaties, 17 
Green Bag 533 (Sept. 1905). Since the article contains little more than a mere 
statement of a general conclusion, it is of value chiefly because of the source 
whence it comes. The Hague Treaty of 1 899 left the matter of arbitration entirely 
optional with the Powers, though a permanent court of arbitration was estab- 
lished. See Foster, Arbitration and the Hague Court 42. Accord- 
ingly, in 1904, the President negotiated treaties with several of the Powers, 
whereby the contracting parties bound themselves to submit questions of a 
certain nature to the permanent court established at the Hague, in cases which 
might prove impossible of settlement by ordinary diplomatic methods. In 
the second article of each of these treaties it was proviaed, in accordance with 
Article XXXL of the Hague Treaty, that, "in each individual case the high 
contracting parties, before appealing to the permanent court of arbitration, 
shall conclude a special agreement defining clearly the matter in dispute and 
the scope of the powers of the arbitrators, and fixingj the periods for the forma- 
tion of the arbitral tribunal and the several stages of the procedure." Moore, 
Treaties and Executive Agreements, 20 Pol. Sci. Quar. 385. For the 
word agreement in the instruments, however, the Senate substituted the word 
treaty. The incident closed with the President's refusal to acquiesce in 
this amendment. Whether the Executive has the constitutional power, inde- 
pendent of a general arbitration treaty, to conclude special agreements under 
the provisions of the Hague convention, has been much discussed. See 
Foster, The Treaty-Making Power under the Constitution, 11 
Yale L. J. 69; Holls, The Peace Conference at the Hague 216; Hyde, 
Agreements of the United States Other than Treaties, 17 Green 
Bag 229. That he may constitutionally be given such a power by a general 



70 HARVARD LAW REVIEW. 

arbitration treaty is the contention of Mr. Wheeler's committee, who maintain 
that no treaty-making power is thus delegated to the President ; that tboufh 
every treaty is an agreement, every agreement is not a treaty ; and that the 
power of the President and the Senate to make treaties is not limited to the 
power to make special treaties only. 

Mr. Wheeler^s view seems to derive some support from a decision under the 
tariff act of Oct. i, 1890, in which a somewhat similar question was involved. 
Section three of this act provided that whenever the President should be satis- 
fied that the government of any country producing certain articles which were 
admitted free mto the United States, imposed on products of the United States 
duties which he should deem reciprocally unreasonable, he should suspend the 
free introduction of these articles for such a time as he should deem just, during 
which time designated duties were to be paid. 26 U. S. Stat, at L. 567. 
This was held constitutional. Field v. Clark^ 143 U. S. 649. The court, 
after acquiescing in the general proposition that Congress cannot delegate its 
legislative power to the President, stated its position as follows : "It [the action 
otthe President] was not making law. He was the mere agent of the law- 
making department to ascertain and declare the event upon which its expressed 
will was to take effect. . . . What has been said is equalljr applicable to the 
objection that the third section of the act invests the President with treaty- 
making power." See Butler, Treaty-Making Power of the U. S. 
§ 465, note I. 

Following out the analogy of this decision, it would seem that, although the 
President and Senate cannot delegate to the President the treaty-making 
power, yet they can frame a general arbitration treaty, in which the President is 
made the mere agent of the treaty-making department. The treaty |^ves a 
general ratification in advance, delegating to the President, as executive, the 
power of determining what individual instances fall within the scope of the rati- 
fication, and of making the necessary arrangements for carrying out the pro- 
visions for arbitration. 



Right of City to Require Material for its Public ^yoRKs to be 
Dressed within State. — A recent article criticising a late decision of the 
Missouri Supreme Court has brought into prominence a very interesting ques- 
tion of interstate commerce. Aiunicipal Ordinances relating to Materials 
entering into Public Works which Interfere with Interstate Commerce^ by 
Eugene McQuillin, 61 Cent. L. J. 65 (July 28, 1905). An ordinance of St. 
Louis provided that only rock dressed within the state should be used in any of 
the city's public works. The court held that this ordinance was not in conflict 
with the commerce clause of the Federal Constitution, but was an exercise of a 
city's "reasonable right to select material for street improvements." Allen v. 
Labsap^ 87 S. W. Rep. 926. This proposition Mr. McQuillin attacks, on the 
ground that a city's " reasonable right " does not justify an interference with 
interstate commerce, and that such an interference existed in the case under 
discussion. Mr. McQuillin leads up to this main point by a preliminary exposi- 
tion of the elementary principles of interstate commerce, followed by the state- 
ment of several cases. A number of the decisions cited, however, seem not in 
point; among them. People v. Coler (166 N. Y. 144), on which chief reliance is 
placed. The opinion was to the effect that a state law requiring cities to adopt 
such ordinances as that of St. Louis is invalid under the commerce clause of the 
Constitution. There the state was prescribing conditions, not for itself in its 
r61e of proprietor, but for its cities. Nor does any question there arise of the 
reasonable right of a city to select material for its own works. The United 
States Supreme Court in the case of Atkin v. Kansas (191 U. S. 207) rendered 
a decision which applies very forcibly to the point under discussion. A state 
law requiring an eignt-hour day on all the state's public works was held valid, 
on the ground that the state acting as a proprietor has the same right as an 
individual in prescribing the conditions under which work for it shall be done. 
If the Union Pacific, for example, were to declare that only ties dressed in 



BOOKS AND PERIODICALS. 7 1 

Missouri should be used on its roadbed in that state, there would surely arise 
no Question of interference with interstate commerce. 

The other cases cited by Mr. McQuillin hold invalid general state laws inter- 
fering with the inherent right to introduce goods from one state into another 
and to sell them in the general market. For example, the case of Robbins v. 
Shelby Taxing District (120 U. S. 489) declared unconstitutional a state law 
which put a license tax on all sales by drummers. The citation is not apposite, 
for St. Louis does not by its ordinance interfere with the sale to others of 
dressed rock from any source. The resulting reduction of the general market 
has no bearing on the constitutionality of the ordinance, since an individual or 
a corporation might easily use as large a proportion of dressed rock as does 
a single city. The fallacy in Mr. McQuillin's contention lies in the assump- 
tion that any one has an inherent right to compel St. Louis, for example, to 
accept his rock. No such ri|;ht exists as against a city or state any more 
than it exists as against an individual or a corporation. 



Abatement op Smoke Nuisance in Large Cities by LEcisLATrvB Declaration 
THAT Discharge of Dense Smoke is a Nuisance per sb. Euggfu McQuillin, 
Collecting and reviewing the authorities on the (question whether such legislation is 
within the reasonable exercise of the state's police power. 60 Cent. L. J. 343. 

"Agency by Estoppel." John S, Etuart. Reply to Professor Cook, presenting 
estoppel theory in cases of agent's unauthorized action. 5 Columbia L. Rev. 354. 

American Lawyer, The. Alfred Hememvay, The annual address before the 
American Bar Association. 17 Green Bag 514. 

Basis of Affirmative Obligations in the Law of Tort, The. IL Francis H, 
Bohlen, Full discussion of the line of cases headed by Winterbottom v, Wright. 
53 Am. L. Reg. 273. 

Buyer's Risk in Closing a Real Estate Deal, The — How to Escape it. Lem- 
uel Ai. Ackley. A practical and valuable suggestion. i8 Chic. Leg. News 11. 

Case of John Chandler v. the Secretary of War, 1 he. Gordon E, Sherman* 
Tracing the origin of the power of our courts to declare laws unconstitutional, and 
giving early cases on that point. 14 Yale L. J. 431. 

Centenary of the French Civil Code, The. Str Courtenay Ilbert. Touching in- 
cidentally the general question of codification. (Read before British Academy, 
1904.) 6 J. See. Comp. Leg. N. s. 218. 

Certainty and Justice. Frederic R. Coudert, Maintaining that the principle of 
*' Stare Decisis " is being modified. Where public opinion has crystallized, the 
law is clear; elsewhere, as in labor questions, law is confused. 14 Yale L. J. 361. 
See 18 Harv. L. Rev. 318. 

Common Law in Federal Jurisprudence, The. Thomas Dent, Concerning the 
ownership of basins of non-navigable waters adjoining land granted by United 
States patents. 61 Cent. L. J. 123. 

Conditions in Contract. Clarence D. Ashley, Distinguishing between express 
conditions, implied conditions, and limitations. 14 Yale L. J. 424. 

Constitutionality of General Arbitration Treaties, The. Everett P, 
Wheeler, 17 Green Bag 533. See supra. 

Contribution to General Average. II, Birch Sharpe. Discussing how the ob- 
ligation to contribute to general average arises in a policy of marine insurance. 
21 L. Quar. Rev. 155. 

Covenant to Repair in Sub-Leasks, The. H. C. M, A valuable warning to sub- 
lessors to see that every sub-lease reserves a power to the lessor to enter and make 
repairs on the tenant being in default. 119 Law T. 285. 

Customs of Ragusa, The. P. Vinogradoff. Being a review of a recent edition of 
the Statute of Ragusa. 21 L. Quar. Rev. 179. 

Deceased Wife's Sister, The. N, W. Hoyles. Called forth by the prevalency in 
Canada of marriages with deceased wives' sisters and discussing the question from 
a legal and historical view-point. 41 Can. L. J. 345. 

Destruction of Neutral Ships by a Belligerent. Hugh H, L. Bellot. Main- 
taining that destruction of neutral ships by a belligerent cannot be justified by 
even the gravest necessity. 1 19 Law T. 193. 



72 HARVARD LAW REVIEW. 

Development op the Rule in Keech v, Sandford, The. Walter G. Hart, 
Treating the question how far a trustee of a lease purchasing a renewal or the re- 
version oecomes a constructive trustee thereof for his cestui, 21 L. Quar. Rev. 258. 

Disqualification of Exkcutors on Other than Statutory Grounds— Per- 
sonal AND Immoral Unfitness. John W. Smith, Contending that such dis- 
qualification is an unwarranted interference with the testator's expressed desires. 
61 Cent. L. J. 106. 

Do we Need a Philosophy of Law ? Roscoe Pound, Discussing the growth and 
supremacy of the Common Law, and suggesting as a remedy for its present weak- 
enmg a departure from the individualistic view. ^ Columbia L. Rev. 3^9. 

Duration of Copyright. Samuel J. Elder. Showing need of an extension of the 
term, and comparing our law with that of foreign nations. 14 Yale L. J. 4>7- 

Estoppel by Assisted Representation. John S, Ewart, Treating of Agency by 
Estoppel. 5 Columbia L. Rev. 456. 

Exclusiveness of the Power of Congress over Interstate and Foreign 
Commerce, The. I. James S. Rogers, A review of the leading cases, arguing 



against the view that state power is concurrent. 53 Am. L. Reg. 529. 

edom of Contract. Jerome C. JCnawlton. Discussing how far the ngnt of tne 

individual or municipality to contract may constitutionally be curtailed by the 



state. A r^sum^ of the law. 3 Mich. L. Rev. 617. 

Hague Court and Vital Interests, The. Thomas Barclay, Arguing for gen- 
eral arbitration treaties in matters affecting the " national honor or vital interests " 
of nations. 21 L. Quar. Rev. 109. 

Incorporation by the States. Herbert Knox Smith, Urging a national uniform 
law for the regulation of corporations. 14 Yale L. J. 385. 

Influence of the Bar in the Selection of Judges throughout the United 
States, The. Simon Fleischmann, 13 Am. Law. 165, 199. 

In how far may Acts of the Legislature be Made Contingent upon being 
Accepted by Popular Vote without Violating the Principle that 
Legislative Power cannot be Delegated. F, E, Williams, Drawing the 
line between acts that affect the state as a whole, and local option laws submitted 
to the district affected. 61 Cent. L. J. 3. 

Jurisdiction over Non-Residents in Personal Actions. Edwctrd Q, Keasbey, 
Reviewing the English and American decisions. 5 Columbia L. Rev. 436. 

Labor Strikes and Injunctions. P, L, Edwards, A review of the recent cases 
upon this subject. 67 Alb. L. J. 209. 

Law of Bank (j hecks, A Practical Series on the. Anon, 22 Banking L. J. 

305. 393. 567- 
Law of the Constitution in Relation to the Election of President, The. 

J, Hampton Dougherty. A critical discussion of the provisions of the Constitutioii 

relating to the election of President. 67 Alb. L. J. 195. 
Law's Delays, The — Can they be Obviated.^ William Lambert Barnard^ etc. 

Containing a statement of comparative conditions in Eneland, P'rance, and Italy, 

with a discussion of the applicability of foreign methods to the United States. 

17 Green Bag 261, 265, 208. 
Law as to an Employer's Liability and Workmen's Compensation, Prize 

Essay on the. John Hall, Discussing the construction of the acts and their 

scope. 27 L. Stud. J. 178. 
Law concerning Monopolistic Combinations in Continental Europe, The. 

Francis Walker. Comparing various attempts at curative legislation, and the 

causes of their failure. 20 Pol. Sci. Quar. 13. 
Legacies to Servants. C. B. Labatt, A short treatment in text-book style, with 

useful statement of cases. 41 Can. L. J. 425. 
Legal Rights in the Remains of the Dead. Franh W, Grinnell, A highly 

interesting discussion, with full citation of the authorities, of the right and manner 

of disposing of dead bodies. 17 Green Bag 345. 
Liability of Water Companies for Fire Losses — Another View. Albert 

Martin Kales. Restating the prevailing doctrine that the property owners can- 
not sue. 3 Mich. L. Rev. 501. 
Limitation of Hours of Labor and the Federal Supreme Court. Ernest 

Freund. Severely criticising the recent case 6f People v, Lochner. 17 Green 

Bag 411. 
Mandamus against a Governor. Edward J, Myers. Arguing that the writ should 

not issue against the governor of a state. 3 IVnch. L. Rev. 6;ji. 
Maritimk Conferknce, The. II. Anon, Commenting upon tne work of the recent 

conference and the problems which confront it in its endeavor to establish a uni- 
form maritime code for all nations. 119 Law T. 263. 



BOOKS AND PERIODICALS. 73 

Maritime Law and Jurisdiction in Australia. F, L^Simv. 2 Commun wealth 
L. Rev. 157. 

Medical Expert Evidence. LucUim A. Emery, Deploring the present unsatisfac- 
tory condition of medical expert testimony and favoring court experts as supple- 
mentary to the present party experts. 39 Am. L. Rev. 481. 

Most Interesting Chancery Sequel to a Noted Insurance Case at Law, A. 
RobtrtJ. Brennan, Commenting adversely on the decision in Northern Assurance 
Co. V, Ass*n, 183 U. S. 308, holding that there can be no waiver by the insurer 
of a forfeiture clause when the insured is aware of the breach of the condition, and 
commending the contrary holding in Grand View Ass'n v. Assurance Co., 102 
N. W. 246. 60 Cent. L. J. 484. 

Municipal Ordinances relating to Materials entering into Public 
Works which Interfere with Interstate Commerce. Eugene McQuilUn. 
61 Cent L. T. 65. Sec supra. 

New German Code, The. F. P, Walton. A comment upon the new German Code 
explaining briefly the legal system which it supersedea and noticing the points in 
which it differs from English law. 4 Can. L. Rev. 372. 

Notes on Maine's •* Ancient Law." Sir Frederick Pollock, 21 L. Quar. Rev. 165, 
274. 

Noteworthy Changes in the Statute Law of the Year. Henry St, Georfe 
Tucker. Extracts from the Address of the President of the American Bar Associa- 
tion. 17 Green Bag 523. 

Paruament of Nations, A. Hayne Davis, Discussing the movement toward gen- 
eral international arbitration. 12 The Bar, No. 4, 35. 

Philippine Penal Code, The. Rickard W. Young. Commenting upon the com- 
paratively limited discretion of Philippine judges in imposing penalties. 13 Am. 
Law. 147. 

Power of a State to Forbid the Traffic in or the Possession of Wild Game 
AND Fish when Brought in from Another State or Country as Affecting 
Interstate Commerce, The. Eugene F. Law. Review of the authorities, and 
criticism of the decisions holding that a state has the right to prohibit such traffic. 
60 Cent. L. J. 324. 

Practice Work in Law Schools. James Parker Hall. Its advisability discussed 
in a paper before the Association of American Law Schools. 17 Green Bag 528. 

Recovery of Money Paid under Mistake of Law. Frederic C. Woodward, 
Suggesting exceptions to the general rule of non-recovery, and offering a test. 
5 Columbia L. Rev. 366. 

Right of a Third Party under a Contract inter alios. A, C. Gait. An article 
stating the law in England and Canada, with a collection of the cases in point. 
4 Can. L. Rev. 364. 

Scheme of Copyhold Enfranchisement, A. H./. Randall, Suggesting an act 
abolishing copyhold tenures and converting them into freeholds. 21 L Quar. 
Rev. 15a 

Some Changes Effected by the Negotiable Instruments Law in Missourl 
/. Af, Blayney,Jr. Indicating the changes that the act may be expected to pro- 
duce in the law of Missouri. 60 Cent. ll J. 363. 

Subject of *' No Protest," The. Anon, A practical discussion. 22 Banking L. J. 

3"- 

Theory and Practice in the Law of Bailments. Victor D. Cronk. A brief criti- 
cism of the theory that there are three degrees of care in the Law of Bailments. 
67 Alb. L. J. 135. 

True Criteria of Class Legislation, The. Andrew Alexander Bruce. Maintain- 
ing that the true test of class legislation is " whether or not by that legislation 
any person is hindered in his struggle or competition with his fellow men." 60 
Cent. L. J. 42J. 

When will an Innkeeper's Lien for the Board and Lodging of his Guest 
Extend to THE Property of Third Persons Brought to the Hotel by thk 
Guest? Walter J, Lott. Dbcussing the question whether the common law rule 
giving innkeepers a lien in such cases, is taking property without due process of 
law. 61 Cent. L. J. 43. 

XVI (XIV ?) Amendment — its History and Evolution, The. 1. John W.Judd, 
13 Am. Law. 338. 



74 HARVARD LAW REVIEW. 

W. BOOK REVIEWS. 

Wharton and Still^'s Medical Jurisprudence. Volume I. Mental 
Unsoundness. Legal Questions by Frank H. Bowlbv. Insanity: Forms 
and Medico- Legal Relations, by James Hendrie Lloya. Volume II. Poi- 
sons. By Robert Amory and Robert L. Emerson. Volume III. Physi- 
cal Conditions and Treatment. Medical Aspects by Truman Abbe ; 
Legal Aspects by Frank H. Bowlby. Rochester, N. Y. : The Lawyers 
Co-operative Publishing Company. 1905. pp. civ, 1031 ; xxx, 858 \ Ixxix, 
692. 8vo. 
Published originally in 1855, Wharton and Still^*s work on Medical Jurispru- 
dence has since that time been considered standard. Witthaus and Becker on 
Medical Jurisprudence, Forensic Medicine, and Toxicology, published in 1894, 
in four volumes, is the only other exhaustive American work in this field. The 
two books difiEer, however, in form. Witthaus and Becker^ is rather in the 
nature of an encyclopedia than of a treatise, the several chapters and sec- 
tions being written by different distinguished practitioners in law and in medi- 
cine in collaboration with the editors. The first edition of Wharton and Stills, 
consisting of one volume of eight hundred pages, was divided into six books: 
Book I. Mental Unsoundness; Book 11. Questions relative to the Foetus 
and the Unborn Child; Book III. Questions arising out of the Difference of 
Sex; Book IV. Questions relative to Identity; Book V. Questions relating 
to the Cause of Death, Part I. Poisonine, Part II. Other Forms of Violent 
Death; Book VI. Legal Relations of Homicide, Foeticide, and Infanticide. 
No important change was made in the arrangement or text of the treatise 
until the third edition, which was issued in 1873 in three volumes. The first 
volume then was ^iven over entirelv to Mental Unsoundness, a subject which 
had been covered m one of the six oooks of the first edition. Since that time 
the treatise has appeared in three volumes. Between the third edition and the 
present fifth edition, one other noteworthy change occurred. So much new 
material had been accumulated, and so much greater medical knowledge of 
poisons acquired by the editors, that in the fourth edition it was found necessary 
to devote the second volume entirely to the subject of Poisons. This was 
largely the work of the late Professor Edward S. wood of the Harvard Medical 
School, the well-known expert, and is on that account of exceptional value. 

The division into volumes in the present edition is similar to that in the pre- 
ceding; but so many changes have been made in the separate volumes that the 
whole is almost a new work. Volume I. on Mental Unsoundness has been 
increased very greatly in size, comprising now about 1000 pages, and thus in 
itself being lar^^er than the first edition of the entire treatise. The chapters 
I. -XX. on the jurisprudence of insanity are for the most part new work, the text 
havine been rewritten with many new citations by Mr. F. H. Bowlby of the 
publishers' editorial staff. Under the heading, '* Mental Unsoundness in its 
Legal Relations," Mr. Bowlby states the law as represented by the decisions of 
the courts, and considers the effect of lunacy, intoxication, morphinism, and other 
addictions in questions of contracts, marriage, divorce, wills, gifts, life insur- 
ance, torts, offices of trust, settlement and domicile. Further attention is given 
to insanity and intoxication as defenses to crime; and the rules of evidence on 
these several subjects are set forth at length. 

The remaining chapters of the volume, XX.-LIX., on Forms and Medico- 
Legal Relations of Insanity, are new work by Dr. James Hendrie Llovd. 
These chapters are written from the viewpoint of the scientific expert. After 
a discussion of general definitions of insanity, and of general principles of law 
in relation thereto, all the various possible forms of mental unsoundness are 
treated in turn, defined, explained, and illustrated by actual cases. In this 
volume citation is made to approximately 4500 cases. 

The second volume, on Poisons, is edited by Dr. Robert L. Emerson and '^y 
Dr. Robert Amory, who was associated with the late Professor Wood in the 
preparation of the fourth edition. The same general plan has been followed 
in this edition, but certain methods for the detection of poisons, now deemed 



BOOKS AND PERIODICALS. 75 

obsolete, are omitted; and there have been added some new chapters on 
ptomain poisoning, and on the detection of blood stains, as well as some special 
work on Wood Alcohol by Dr. F. M. Spalding. The classification of poisons 
in this edition is made according to their chemical and physical relations rather 
than by the similarity of symptoms following their use. An appendix contains 
full statements of some of the more important cases of poisoning which have 
come before the courts, iUustrating either the symptoms produced by the use of 
the several poisons or the methods employed in the detection oi poisoning. 
The law of Massachusetts on Medical Examiners, the law of Connecticut on 
Coroners, and the United States Report on Boric Acid, are also included in 
the appendix. 

In the third volume, entitled "Physical Conditions and Treatment," the 
legal aspects of the subject have been treated by Mr. Bowlby ; the medical, by 
Dr. Truman Abbe. Nothins; of the fourth edition has been omitted, but the 
material has been considerably rearranged. The distinctly new work consists 
of some chapters on the effects of electricity; and chapters on the rights, 
duties, liabilities and lee^ limitations of physicians and surgeons in their 
personal relations, as well as in all situations arising from their acts. 

There are ample footnotes to the important statements in the several volumes 
giving citations to the works of men in this countrv and abroad who have 
devoted special attention to this particidar branch of legal study. At the end 
of each one of the three volumes is a complete ansuytic index, making it 
possible to use each volume independently. Generally speaking, treatises on 
medical jurisprudence lay so much stress on points arising in criminal practice 
that the very interesting questions which become of importance in civil cases 
are unduly slighted. In Wharton and Stills this tendency, originally less ap- 
parent than in other books, grows less with succeeding eaitions. Tne growth 
of that portion of the work dealing with mental unsoundness is an illustration. 
For this reason the work should appeal to a larger class of readers; and despite 
the fact that Continental writers nave made far more extensive researches in 
the field which it covers than English and American jurists, it is entitled to 
rank well among the general treatises of the present day. s. h. e. p. 



A Treatise on the Conflict of Laws, or Private International Law. 
By Francis Wharton. Third edition, by George H. Parmele. In two vol- 
umes. Rochester, N. Y. : The Lawyers' Co-operative Publishing Co. 
1905. pp. ccxxiv, 1-848; xxvii, 849-1830. 8vo. 

The present edition of Wharton's Conflict of Laws, although a great improve- 
ment upon its two predecessors in its handling of the various topics considered, 
is, nevertheless, handicapped by Mr. Wharton's illogical and unscientific treat- 
ment of the subject A most careful examination of the author's division of the 
questions involved in the Conflict of Laws fails to disclose anything remotely 
resembling a plan which he has followed. All topics, especially the law eov- 
ernino; contracts, are in a state of confusion, the inevitable result of jumbling 
together the creation, recognition, and enforcement of rights. 

The subject of jurisdiction, for one, as faulty in the present edition as in the 
past, is neither thoroughly grasped nor adequately treated. The editor sup- 
ports the general trend of decisions in holding that the law to govern the crea- 
tion of contracts is the law which the parties intend. He further urges that, in 
the absence of any expressed intention to the contrary, the law of the place of 
performance should govern, since that state is the one most interested in the 
contract. This position is due largely to the failure to distinguish clearly be 
tween the creation and the enforcement of the contractual obligation, and also 
to a misapprehension of the common law notion of the essential nature of law. 
For, according to the common law, law can have no extra-territorial effect. 
Since a contract is an agreement to which the law attaches an obligation, a 
state can attach an obligation only to acts committed within its borders. To 



76 HARVARD LAW REVIEW. 

say that the law intended hy the contracting parties should govern the creation 
of a contractual obligation is just as reasonable as to hold that a person who 
commits a tort with the intention of being governed by the laws of the state 
where such acts do not constitute a tort, is therefore not liable. Moreover, if 
the laws of the state intended by the parties govern the creation of contracts, 
how can that state be deprived of its jurisdiction by any legislation by the state 
where the acts are committed ? One state having attached an obligation to cer- 
tain acts, another state can by no amount of le^slation a£Eect its neht to do so. 
Yet the law is, that where a state enacts a special law the intent of the parties 
will not govern. 

This unscientific treatment, which vitiates the whole work, has led to many 
inaccuracies in the editor's treatment of the subjects of marriage (see § 237 b), 
and the status of legitimated children (§§ 250-251). While every state must 
recognize a status created by the proper law, yet the consequences that arise 
in any jurisdiction must depend upon the law of that jurisdiction. 

In § 230 a the editor argues that although a divorce granted by a state where 
a party merely resides is void, yet a statute which expressly substitutes resi- 
dence for domicile thereb)r overcomes the general principle that the law of 
the state where the party is domiciled governs, Why this should be so, the 
editor gives no reason. An action for divorce is an action quctsi in rem, and 
the on^ state having jurisdiction over the status which is the subject of the 
action is the state where the parties are domiciled. How, then, can a state ac- 
quire jurisdiction over that status as long as neither of the parties is domiciled 
there i It is because it cannot, that a vduntary appearance by the parties does 
not confer jurisdiction; Andrews v. Andrews, 188 U. S. 14. 

Again, in §§ 4 b and 257 a, the editor upholds the view that a judgment 
recovered under a penal statute cannot be enforced in another jurisdiction. 
This is due to the loose method of statement adopted by some courts in saying 
that a judgment is merely evidence of the existence of an obligation. The 
truth is, that the judgment merges the original obligation. An action can be 
brought on the judgment ; it has a distinct stal.«te of limitations, and defenses 
available in the original action cannot be pleaded in an action on the judgment. 
Suppose, instead of bringing an action on the penalty, the parties had made a 
contract, whereby, in consideration of the one releasing the other from his obli- 
gation, the other agreed to give a horse ; no doubt such a contract would be 
enforcible everywhere. Why should there be any difference whether the new 
contractual obligation is created by assent of the parties, or by operation of law, 
since a judgment is a quasi-contractual obligation} Upon this ground Hunting- 
ton V. Attnll, 146 U. S. 657, may be supported. 

While the editor of this new edition has done his work with zeal and ability, 
no amount of editing can overcome the defects inherent in Wharton's Conflict 
of Laws. Whether a consciousness of the inadequacy of the original, or a large 
public demand for a work on this subject, or both, led to this new edition, the 
question still remains why so unscientific a work on the most scientific branch 
of the law should be deemed worthy of a new edition. s. j. r. 



The Civil Code op the Republic of Pai^ama, and Amendatory Laws» 

Continued in Force in the Canal Zone, Isthmus of Panama, by Executive 

Order of May 9, 1904. Translated under the direction of^ Charles £. 

Magoon, General Counsel, Isthmian Canal Commission, by Frank L, 

Joannini. Washington, D. C. : Isthmian Canal Commission. 1905. pp. 

xvi, 681. 8vo. 

Upon the declaration of its independence in November, 1903, the Republic 

of Panama, by proclamation, continued in force the pre-existing law, with such 

modifications as the political changes efiFected might require. The Panama 

code is, consequently, substantially identical with that of Colombia, and like the 

latter is Spanish in origin and development, being based upon the Roman law. 



BOOKS AND PERIODICALS. 77 

In May, 1904, an executive order of the United States ^Temment continued 
in force in the canal zone the laws of the state of which it had previously 
formed a part, thus increasing still further the already considerable area of 
American territory in which the civil law system prevails. Mr. Joannini's 
translation, for which he claims the merit of uniqueness, must therefore 
interest the practical American business man and lawyer as well as the student 
of comparative jurisprudence. The volume is unannotated save for occasional 
references to the civil codes of Louisiana and Chili. An historical introduc- 
tion contains a brief statement of the various bodies of law which have pre- 
vailed in the territory now known as the Republic of Panama since its original 
colonization. In November, 1903, the new Republic provided for the appoint- 
ment of commissions to draw up civil, judicial, commercial, and mining codes. 
This work has not yet been brought to a conclusion, however; and pendine its 
completion the present translation of the law now prevailing seems likely to 
be Ireful. 



Pomeroy's Equity Jurisprudence, in four volumes. By John Norton 
Pomeroy. Third Edition Annotated and much enlarged, and supple- 
mented by a Treatise on Equitable Remedies, in two volumes, by John 
Norton Pomeroy, Jr. San Francisco : Bancroft- Whitney Company. 1905. 
pp. Iviii, 1-859; *"» 861-1806; XV, 1807-2626; vii, 2627-3525. 8vo. 

The Civil Code of the Republic of Panama and Amendatory Laws Con- 
tinued in Force in the Canal Zone, Isthmus of Panama, by Executive 
Order of May 9, 1904. Translated under the direction of Charles £. 
Magoon, by Frank L. Joannini. Washington, D. C. : Isthmian Canal 
Commission. 1905. pp. xvi, 681. 8vo. 

A Treatise on the Law of Agency, including Special Classes of Agents, 
Attorneys, Brokers, and Factors, Auctioneers, Masters of Vessels, etc., etc. 
By William Lawrence Clark and Henry H. Skyles. In two volumes. St 
Paul, Minn.: Keefe-Davidson Co. 1905. pp. liv, 1-1146; 1 147-2178. 8vo. 

Probate Reports Annotated : containing Recent Cases of General Value 
Decided in the Courts of the Several States on Points of Probate Law. 
With Notes and References. By Wm. Lawrence Clark. New York: 
Baker, Voorhis & Company. 1905. pp. xxii, 706. 8vo. 

Law op the Domestic Relations, embracing Husband and Wife, Parent 
and Child, Guardian and Ward, Infancy, and Master and Servant. By 
James Schouler. Boston : Little, Brown & Company. 1905. pp. xxxix, 
421 . 8vo. 

Report of the Twenty-Seventh Annual Meeting of the American 
Bar Association, held at St. Louis, Missouri, Sei>tember 26, 27, and 28, 

1904. Philadelphia: Dando Printing and Publishing Company. 1904. 
pp. 966. 8vo. 

Report of the Eleventh Annual Meeting of the Mohunk Lake 
Conference on International Arbitration, 1905. Reported by 
Miss Lillian D. Powers. The Mohunk Lake Arbritration Conference. 

1905. pp. 179. 8vo. 

The Indian Contract Act. With a Commentary, Critical and Explanatory. 
By Sir Frederick Pollock, assisted by Diusha Fardunji MuUa. London: 
Sweet & Maxwell, Limited ; Bombay : Thacher & Company. 1905. pp. 
xlvi, 623. 8vo. 

Studies in the Civil Law, and its Relations to the Jurisprudence of England 
and America, with References to the Law of our Insular Possessions. By 
William Wirt Howe. Second Edition. Boston: Little, Brown & Com- 
pany. 1905. pp. xii, 390. 8vo. 

Legislation against Speculation and Gambling in the Forms of 
Trade, including " Futures," '* Options," and " Short Sales." By T. Henry 
Dewey. New York : Baker, Voorhis & Company. 1905. pp. 7<« 8vo. 



78. HARVARD LAW REVIEW. 

The English and Indian Law of Torts. By Ratanlal Ranchhoddas and 

Dhirajlal Keshavlal Thalsor. Bombay : The Bombay Law Reporter Office. 

1905. pp. c, 508. 8vo. 
Patriotic Studies. Inciuding Extracts from Bills, Acts, and Documents 

of United States Congress. 1888-1905. Washington, D. C: International 

Reform Bureau, pp. 288. 8vo. 
Proceedings of the American Political Science Association. Held 

at Chicago, 111., December 28 to 30, 1904. Lancaster, Pa.: Wickersham 

Press. 1905. pp. 249. 8vo. 
The Law of Contracts. By William Herbert Page. In three volumes. 

Cincinnati : The W. H. Anderson Co. 1905. pp. cclxv, 1-848 ; 851-1930 ; 

1933-3083. 8vo. 
A Treatise on the Law of Fixtures. By Marshall D. Ewell. Second 

Edition, edited and annotated by Frank Hall Childs. Chicago : Callaghan 

& Company. 1905. cviii, 784. 8vo. 
The Law of Crimes. Bv John Wilder May. Third Edition, edited by 

Harry Augustus Bigelow. Boston: Little, Brown & Company. 1905. 

pp. hv, 366. 8vo. 
The Law of Bailments, including Pledge, Innkeepers, and Carriers. By 

James Schouler. Boston : Little, Brown & Company. 1905. pp. xxzii, 

415. 8vo. 
Courts and Procedure in England and in New Jersey. By Charles 

H. Hartshorne. Newark, N. J.: Toney & Sage. 1905. pp. xi, 233. 

i2mo. 
The Law of Interstate Commerce and its Federal Regulation. 

By Frederick N. Judson. Chicago : F. H. Flood & Co. 1905. pp. xix, 

590. 8vo. 
Leading Cases in the Bible. By David Werner Amram. Philadelphia : 

Julius H. Greenstone. 1905. pp. vii, 215. i2mo. 
A Treatise on the Law of Real Property. By Frank Goodwin. 

Boston: Little, Brown & Company. 1905. pp. lii, 531. 8vo. 
Evidence in Athenian Courts. By Robert J. Bonner. Chicago: The 

University of Chicago Press. 1905. pp. 98. 8vo. 
Constitutional Law of England. By Edward Wavell Ridges. London : 

Stevens & Sons, Limited. 1905. pp. zxxii, 458. 8vo. 
The American Judiciary. By Simeon E. Baldwin. New York: The 

Century Co. 1905. pp. xiii, 403. 8vo. 



HARVARD 

LAW REVIEW. 

VOL. XIX. DECEMBER, 1905. No. 2 

EQUITABLE CONVERSION.^ 

V. 

AT the beginning of the preceding article,* it is stated that, 
previous to Ackroyd v. Smithson, it was held that the land 
of a deceased person which had been converted in equity into 
money by his will became in consequence assets for the payment 
of his debts, and that the money of a deceased person which had 
been converted in equity into land by his will ceased in conse- 
quence to be assets for the payment of his debts. To understand 
the full force of this statement, the reader must remember that 
previous to 3 & 4 Wm. 4, c. 104, the land of a deceased person 
was not in England assets for the payment of his simple contract 
debts, so that the effect of the foregoing statement is that a testator 
could by converting his land into money by his will, enable his 
simple contract creditors to obtain payment out of his land of what 
was due to them respectively, though by law such creditors would 
go unpaid unless the testator left sufficient personal estate to pay 
them ; and so that a testator could, by converting his money in 
equity into land by his will, deprive his simple contract creditors 
of the right which the law gave them to be paid out of such money 
what was due to them respectively. That the courts should have 
held that the conversion of land into money by will made the land 
available for the payment of all the testator's debts is not surpris- 
ing, but that they should have held that the conversion of money 
into land by will enabled a testator to deprive his simple contract 

1 Continued from 19 Harv. L. Rev. 29. 2 i^ Harv, L. Rev. i. 



8o HARVARD LAW REVIEW, 

creditors of their legal right to be paid out of his money is very 
surprising. That such was, however, held to be the law, there 
seems to be no doubt, though the reported cases ^ are not very 
conclusive. Are these cases justified by the authorities which de- 
cided that land converted into money by will devolved as money 
at the death of the testator, and that money converted into land 
by will devolved as land at the death of the testator? No, it seems 
not, for the latter did not involve holding that an equitable con- 
version by will takes place prior to the testator's death, while it 
seems clear that the question whether any particular property of a 
deceased person is or is not assets for the payment of his debts de- 
pends upon the quality of that property when the testator dies. To 
hold, therefore, that the land of a deceased person is assets for the 
payment of his simple contract debts because it was converted in 
equity into money by his will, is to hold that the conversion took 
effect during the testator's lifetime, — which is impossible. To hold 
that the money of a deceased person is not assets for the payment 
of his simple contract debts, because it was converted in equity 
into land by his will, is to hold that a testator can effect, by con- 
verting his money into land by his will, what he could not effect 
by a direct and absolute bequest of the money. 

In Sweetapple v. Bindon,^ in which a testator directed his execu- 
tor to lay out £lQO in the purchase of land, and to settle the land 
(as the court held) upon the testator's daughter in tail, and the 
daughter married and had issue, but she and her issue were both 
dead, and the money not having been laid out, her husband filed 
a bill to have the money laid out and the land settled on him for 
his life, as tenant by the curtesy, or to have the interest of the 
money paid to him during his life, the court decreed the money 
to be considered as land, and the plaintiff to have it for life as 
tenant by the curtesy. But, though the case seems always to 
have been regarded as well decided, it seems impossible to sup- 
port it on principle. If the money had been laid out during the 
daughter's lifetime, of course there would have been no difficulty, 
even though the land had not been settled on the daughter as 
directed, but, after the death of the daughter and her issue, there 
was no one who could compel the executor to lay the money out, 

» Fulham v, Jones, 2 Eq. Ca. Abr. 250, pi. 3, 296, pi. 7, 298, pi. 10, note, 7 Vin. 
Abr. 44; Whitwick v, Jermin, cited in Earl of Pembroke v, Bowden, 3 Ch. [217] 115, 
2 Vem. 52, 58; Gibbs v. Ougier, 12 Vcs. 413. 

« 2 Vem. 536. 



EQUITABLE CONVERSION. 8 1 

— not the husband, as he was not one of those for whose benefit 
the duty was imposed upon the executor. 

The courts would also undoubtedly have declared that^ on the 
death of a husband, who is entitled to have money laid out in the 
purchase of land, and to have the land settled upon him in tail in 
possession, his wife would be entitled to dower, but for the rule 
which disables a wife from being endowed out of an equitable 
interest. This view is, however, open to the same objection as 
the decision in Sweetapple v, Bindon. 

In a former article, when speaking of the ordinary bilateral con- 
tract for the purchase and sale of land I stated ^ that that was 
the only species of contract " in which an agreement to buy or sell 
land is alone sufficient to create an equitable conversion. Such 
a contract is also believed to furnish the only instance of an equi- 
table conversion which is always coextensive with the actual con- 
version which is agreed or directed to be made." 

It seems desirable that the two statements contained in this pas- 
sage should be a little enlarged upon. i. The only other species 
of contract in which it is certain that an agreement to buy or sell 
land forms an element in an equitable conversion is a unilateral 
covenant to lay out money in the purchase of land and to settle 
the land, or to sell land and settle the proceeds of the sale, and we 
have seen ^ that a covenant to lay out money in the purchase of 
land or to sell land, will not cause an equitable conversion nor 
even constitute a binding contract, unless it be followed up by a 
covenant to settle the land to be purchased, or the proceeds of 
the land to be sold. Why, then, is this difference between a bi- 
lateral contract to buy and sell land, and a unilateral covenant to 
buy or sell land? It is because of the different effect produced by 
the performance of the two contracts. The mutual performance 
of the bilateral contract causes a conversion, not only of the seller's 
land into money, but of the buyer's money into land, and also 
causes a transfer, not only of the seller's land to the buyer, but of 
the buyer's money to the seller. On the other hand, the perform- 
ance of the unilateral covenant, from the fact that the covenant is 
only unilateral, cannot possibly cause more than one conversion 
nor more than one transfer. Does it do as much as that? It does 
cause a conversion of the covenantor's money into land, or of his 
land into money, and it does, in a sense, cause a transfer of the 

1 i8 Harv. L. Rev. 251. « 18 Harv. L. Rev. 256>-7. 



82 HARVARD LAW REVIEW. 

money or land, but not in such a sense as to make the covenant a 
first step towards such transfer; for the transfer which a perform- 
ance of the covenant causes is to a stranger to the covenant, and 
it may, therefore, in respect to the effect produced by the cove- 
nant and by its performance, be regarded as a mere accident; for 
the reader must remember that the covenant is not to buy land 
of the covenantee, nor to sell land to him, but is to buy land of, 
or to sell land to, some third person not a party to the covenant, 
nor ascertained by it. It is true that the performance of the cove- 
nant will involve the purchase or sale of land, and so will practi- 
cally involve, not only the making, but the mutual performance, 
of a bilateral contract for the purchase or sale of land, but the only 
effect of such purchase or sale upon the covenantor will be to make 
him the owner of the land instead of the money, or of the money 
instead of the land, and thus to place him in a situation to settle 
the land or the money, just as if he had purchased or sold the land 
before he made the covenant, — in which case the covenant would 
of course be only to settle the land purchased, or the proceeds of 
the land sold. It will be seen, therefore, that, in the case of a uni- 
lateral covenant to purchase and settle land, or to sell land and 
settle the proceeds of the sale, while it is the purchase or sale of 
the land which causes the conversion, it is the settlement of the 
land or money which causes the transfer or alienation without 
which the covenant cannot create an equitable conversion. In 
order, therefore, that a unilateral covenant to buy or sell land may 
cause an equitable conversion, it must be a covenant to buy land 
of the covenantee, or to sell land to him, or there must be added, 
to the covenant to buy or sell land, a covenant to make a gift of 
some portion of the land to be purchased, or some interest therein, 
or of some portion of the proceeds of the land to be sold, or of 
some interest therein. The only instance of the latter that occurs 
to me is the covenant, already referred to, to lay out money in the 
purchase of land and to settle the land, or to sell land and settle 
the proceeds of the sale ; and the only instance of the former that 
occurs to me is the unilateral contract to sell land which is com- 
monly known as the giving of an option.^ Such a contract is a 
unilateral agreement to sell land at the price, and on the terms, 
stated in the contract, without any agreement by the other party 
to the contract to purchase the land. The payment of the price, 

1 i8 Harv. L. Rev. lo et set/. 



EQUITABLE CONVERSION. 83 

therefore, is merely a condition of the latter's right to have the 
land. Still, such a contract would seem, in theory, to cause an 
equitable conversion in favor of the holder of the option, but, in 
the case of the latter's death, the only right that would devolve 
upon any one would be the conditional right to have the land on 
paying the price, and whether that right would devolve in equity 
upon the heir or the personal representative of the deceased is at 
least doubtful, and I am not aware that there is any authority on 
the point. 

2. The other statement contained in the passage quoted above 
is that a contract for the purchase and sale of land furnishes the 
only instance of an equitable conversion which is always coex- 
tensive with the actual conversion agreed or directed to be made. 
Why is the equitable conversion caused by such a contract always 
coextensive with the actual conversion which the performance of 
the contract involves? Because the reason why such a contract 
causes an equitable conversion, or rather two equitable conver- 
sions, is that its performance involves two alienations as well as 
two actual conversions, and these two alienations and two actual 
conversions are made by the same two acts, one performed by 
each of the two parties to the contract, namely, a delivery of a 
deed of conveyance of the land by the seller to the buyer, and 
a delivery of the price of the land by the buyer to the seller. 
Plainly, therefore, the thing which the seller converts into money 
is the same as the thing which he alienates to the buyer, and the 
thing which the buyer converts into land is the same as the thing 
which he alienates to the seller. It may be added that these two 
acts regularly take effect at the same instant of time, and hence 
the two alienations and the two actual conversions are regularly 
made at the same instant of time. 

Why is it that no other equitable conversion is necessarily 
coextensive with the actual conversion required to be made by 
the covenant or direction which causes the equitable conversion? 
Because, in every other case, the actual conversion of land into 
money, or of money into land, must be made before any gift of 
the money or land into which the conversion is made can take 
effect ; and, as it is the latter alone that causes the equitable con- 
version, it necessarily follows that the extent of the equitable 
conversion is measured by the extent of such gift and not by the 
extent of the actual conversion. 

It is proper, however, to mention another species of agreement 



84 HARVARD LAW REVIEW. 

which has been held to cause an equitable conversion of land into 
money, namely, the agreement which is sometimes made by each 
of several co-owners of land with the other co-owners to join the 
latter in making a sale of the land.^ If it is true that such an 
agreement converts the land into money in equity, it seems to be 
another instance of a contract which converts land into money 
without any gift of the money into which the land is to be con- 
verted, and it seems also that the equitable conversion which it 
causes will always be coextensive with the actual conversion 
which is contracted to be made. It is clear, however, that such 
an agreement does not cause any equitable conversion whatever. 
To suppose that it does is to confound an agreement by each of 
several co-owners of land with all the others to join the latter in 
selling the land to some person not yet ascertained, — to confound 
such an agreement with an agreement by all such co-owners to 
sell the land to some ascertained person; and even the latter 
agreement will not cause an equitable conversion of the land into 
money without an agreement by the other party to the contract to 
purchase the land. Without the latter, the agreement will merely 
give an option to purchase the land, and its utmost eflfect, in the 
way of causing an equitable conversion, will be to convert the 
money of the person receiving the option into land in equity. 
The only way in which one can convert his own land into money 
in equity in his own favor is by procuring some one else to contract 
with him to purchase the land. Even in the case of a bilateral 
contract for the purchase and sale of land, it is, as we have seen, 
the purchaser's side of the contract that converts the seller's land 
into money in equity, while it is the seller's side of the contract 
that converts the purchaser's money into land in equity. It is 
a mistake, moreover, to suppose that the agreement in ques- 
tion is a contract to sell the land. If it were, the next step 
would be to convey the land, whereas, in fact, the next step is a 
bilateral contract between all the co-owners of the land and an 
ascertained purchaser for the purchase and sale of the land ; aiid» 
of course, it is this contract that causes an equitable conversion of 
the land into money. It may be added that it is by no means an 
easy task so to frame an agreement, like that in question, that it 
can be enforced in a court of law, and it is believed that no in- 



» Hardcy v. Hawkshaw, 12 Bcav. 552 ; In re Stokes, 62 L. T. 176; Darby v. Darby, 
3 ^^' 495- 



EQUITABLE CONVERSION. 85 

telligent person will seriously contend that such an agreement can 
be specifically enforced in equity. 

In a former article,^ I have considered several important dis- 
tinctions, having no direct connection with equitable conversion, 
between a direction to sell land accompanied by a gift of the 
proceeds of the sale, or of some part thereof, or of some interest 
therein, and the creation of a lien or charge on the same land, 
either with or without a direction to sell the land to satisfy the 
lien or charge. There is, however, another important and radical 
distinction between these two things which has exclusive relation 
to the creation of an equitable conversion, — so radical indeed 
that, while the former always causes an equitable conversion, the 
latter never does. This being so, it is indispensable that the two 
things be accurately distinguished from each other. Fortunately, 
too, it is possible to distinguish them with entire accuracy, though 
they seldom, if ever, have been so distinguished. How, then, is 
the distinction to be made? i. A gift out of the proceeds of a 
sale of land, though it may be of either a limited or an absolute 
interest, must always extend either to the entire proceeds of the 
sale, or to some fractional part thereof, and hence such a gift 
always makes a sale of all the land necessary, as it is only by a 
sale of all the land that the amount of money to which the gift 
will extend can be ascertained. 2. Where land is charged with 
the payment of money the amount of money which constitutes 
the charge bears no relation to the value of the land or to the 
price for which it will sell, and hence a sale of the land can never 
be necessary to ascertain the amount of the charge, nor will a sale 
of the land even aid in ascertaining its amount. How, then, shall 
the amount of the charge be ascertained? He who makes the 
charge must at his peril fix its amount or furnish the means of 
fixing it For example, if the charge consists of a sum of money 
given, by the deed or will which creates the charge, to a person 
named, the usual and proper mode of fixing the amount of the 
charge is by naming the amount of the gift in lawful money. If 
the charge be made by will, and consist of all the testator's pecu- 
niary legacies, the amount of the charge will be ascertained by 
adding together all the pecuniary legacies contained in the will 
and in the codicils thereto, if any. If the charge be created by 
a will, or by a deed of assignment, and consist of all the tes- 

* 18 Harv. L. Rev. 83 et seq. 



86 HARVARD LAW REVIEW. 

tator's or assignor's debts, the amount of the charge will be ascer- 
tained by adding together such debts as the testator or assignor 
shall be proved to have owed when he died, or when he made the 
deed of assignment. Or, instead of charging " all his debts " he 
may of course charge only such debts as he shall specify in the 
will or deed, and, in that case, the will or deed will be conclusive 
both as to the number of debts and as to the amount of each. 

Why does a lien or charge on land never cause an equitable 
conversion of the land into money? i. Because it never consti- 
tutes any step towards the alienation of the land. When a sale 
of land is directed, and a gift is at the same time made out 
of the proceeds of the sale, to A, for example, and the land is 
afterwards sold pursuant to the direction, an immediate conse- 
quence of the sale is that the proceeds, to the extent of the gift, 
become the property of A, at least in equity, and that is of course, 
by virtue of the previous gift to him, which, however, remains ex- 
ecutory till the sale is made. On the other hand, when land is 
merely charged with the payment of money to A, for example, 
and the land is afterwards sold, whether for the purpose of satisfy- 
ing the charge or not, the ownership of the proceeds of the sale 
will be just where it would have been if the charge had not been 
made, and no part of such proceeds will be the property of A, — 
whose right against such proceeds will be precisely the same as 
his right against the land before it was sold, i. ^., he will have a 
lien or charge on such proceeds for the sum of money coming 
to him. 2. If a charge of land with a payment of a debt causes 
an equitable conversion of the land to the extent of the debt, it 
must be because of the direction to sell the land^ which is sup- 
posed to accompany the charge; and yet such a direction is 
wholly unnecessary, the charge being complete without it A 
direction, indeed, to sell land, and apply the proceeds of the sale 
to the payment of a certain debt, will of itself constitute a charge 
of the debt upon the land, but it is only as evidence of an intention 
to make a charge that such a direction is material. Besides, when 
an owner of land charges the same with the payment of a debt, 
his power over the land is, to the extent of the charge, entirely 
suspended, and will remain suspended till the charge is removed, 
and, therefore, the addition of a direction to sell the land is, for 

1 For it is only by an agreement or direction to sell, that land can be converted in- 
directly into money. Hyctt v. Mekin, 25 Ch. D. 735. And see 19 Harv. L Rev. 25, 
proposition 9. 



EQUITABLE CONVERSION. S? 

that reason, without meaning. The owner of the charge can re- 
quire the land to be sold whenever there is a default in the pay- 
ment of the debt, but that is because of the charge, — not because 
of a direction to sell the land. It cannot, therefore, be said, with any 
propriety, that, in any case where an owner of land charges it with 
the payment of a debt, and the land is afterwards sold for the 
satisfaction of the charge, the sale takes place by virtue of a pre- 
vious direction by the owner of the land ; and hence the making of 
the charge cannot cause an equitable conversion of the land into 
money. 3. When land is charged with the payment of a debt 
the debt has an independent existence, and that, too, at law as 
well as in equity. So far from its being at all dependent upon 
the charge, the charge is so dependent upon the debt that it 
cannot exist without it. Nor does a sale of the land have any 
other effect upon the debt than to produce a fund which is ap- 
plicable to its payment and discharge. In short, the land has 
nothing to do with bringing the debt into existence, nor with the 
debt during the period of its existence, — only with its payment 
and extinguishment. It is true that the debt is personal property, 
but that is not because it is land converted in equity into money, 
for it is, from its nature, personal property at law and in fact, as well 
as in equity. Nor can it owe its existence to the actual sale of the 
land, for then it would not come into existence till afler the sale, 
whereas it is assumed that the purpose of the sale is the payment 
of the debt, and hence that the debt exists before the sale is made. 
As, therefore, a debt charged on land is personal property without 
reference to the question whether the land is, to the extent of the 
debt or debts charged upon it, converted in equity into money or 
not, it follows that the latter question is not a practical one, as no 
person can have any interest in maintaining either the affirmative 
or negative of it. 

The only practical question, therefore, is whether land which is 
charged with debts is thereby wholly converted in equity into 
money, for, if it is, of course any surplus over and above the 
charge will be converted into money in equity. As to this 
latter question, however, it may be observed, first, that, before 
the affirmative of it can be established, it must be proved that a 
charge of land with debts converts the land into money in equity 
to the extent of the debts charged upon it, and therefore the argu- 
ments which I have urged in disproof of the latter proposition are 
equally strong in disproof of the proposition that a charge of land 



88 HARVARD LAW REVIEW. 

with debts converts the surplus of the land into money in equity; 
secondly, that, in order to establish the affirmative of this latter 
proposition, it must be proved that a person can, by a covenant 
or a direction to sell land, convert such land into money in equity 
as to himself, and as to those claiming under him, subsequent to 
such covenant or direction, — a proposition which can easily be 
proved by authority, but the negative of which is very clear upon 
principle ; thirdly, that, a charge of land with debts, or a direction 
to sell land for the payment of debts, authorizes a sale of so much 
of the land only as is necessary for the payment of the debts 
charged, and, therefore, can not cause an equitable conversion of 
the surplus of the land over and above such debts. If, therefore, 
the charge be made by deed, any surplus of the land over and 
above the charge will still belong, at least in equity, to the person 
who made the charge, and such surplus will be land in his hands. 
If the charge be made by will, any surplus over and above the 
charge will, at least in equity, pass to the testator's heir or devisee, 
and will be land in his hands. Accordingly, in the case of Roper 
V. Radcliffe,^ it was resolved by the House of Lords, reversing the 
decree of the Court of Chancery, 

''that though lands devised for payment of debts and legacies are to be 
deemed as money so Car as there are debts and specific legacies to be paid, 
yet still the heir at law has an interest in such lands by a resulting tmst, so 
far as they are of value after the debts and legacies are paid ; and the heir 
at law may properly come into a court of equity and restrain the vendor 
from selling more of the lands than what are necessary to raise money suf- 
ficient to discharge the debts and legacies, and to enforce the devisee to 
convey the residue to him \ which residue shall not be deemed as money, 
neither shall it go to the executors of the testator. Nay, the heir at law in 
such case may properly come into a court of equity, and offer to pay all 
the debts and legacies, and pray a conveyance of the whole estate to him ; 
for the devisee is only a trustee for the testator to pay his debts and legacies. 
This is a privilege which has been always allowed in equity to a residuary 
devisee ; for if he come into court, and tender what will be sufficient to 
discharge all the debts and legacies, or pray that so much of the lands and 
no more, may be sold, than what will raise money to discharge them, this is 
always decreed in his favor. Therefore, though lands given in trust, or 
devised for payment of debts and legacies, shall be deemed in equity as 
money in respect to the creditors and legatees, yet it is not so in respect 
to the heir at law or residuary devisee; for in those cases they shall be 
deemed in equity as lands." 

i 9 Mod. 167, 170. 



EQUITABLE CONVERSION. 89 

So in Nicholls v, Crisp,^ where a testator directed all his land to 
be sold, and charged the proceeds with certain legacies, and, if 
the proceeds should exceed ;£3,ooo he bequeathed the surplus 
to his natural daughter, who died before him, Lord Bathurst de- 
clared that, the object being to convert the land merely for the 
purpose of paying the legacies, if the heir would pay the legacies, 
the lands should not be sold. Also in Digby v, Legard,^ where 
a testator devised his real and personal estate to trustees in trust 
to sell to pay debts and legacies, and to pay the surplus to five 
persons equally, one of whom died before the testator, and the 
question was whether her one-fifth -was real or personal estate, the 
counsel for the heir insisted that the testator charged and sub- 
jected her land to the payment of her debts and legacies, only in 
case the personal estate were not sufficient, in which event alone 
was the land to be sold, and only so much as should be necessary ; 
and that the five residuary legatees might have paid the debts and 
legacies, and then have called for a conveyance of the land ; and 
Lord Bathurst so held. 

While, however, the foregoing cases have never been overruled 
or even questioned, it must be confessed that the courts have, for 
the most part, failed to distinguish charges on land from gifts of 
the proceeds of the sale of land, and hence they have assumed 
that the former have the same effect as the latter in converting the 
land into money in equity. Cases arising upon wills, in which they 
have so assumed, have already been sufficiently stated.' Cases in 
which a lien or charge on land is created by deed are generally 
cases in which debtors, in embarrassed circumstances, make an 
assignment of their property, both real and personal, for the bene- 
fit of their creditors. Such assignments, if they create any new 
right in favor of the creditors, create in their favor a lien or charge 
on the property assigned. They do not, however, necessarily 
create any new right * in favor of the creditors, and when they do 
not, the assignees, though they become the legal owners of the 
property, hold it simply as the agents of their assignors, whose 
servants they are, and who may, therefore, revoke their authority 

1 Stated by Sir R. P. Arden, M. R., in Croft v, Slee, 4 Ves. 60, 65. 
s Dick. 500. 

• See 19 Harv. L. Rev. 26-28; also 17, n. (2). The cases are Hill v. Cock, i Ves. 
& B. 173; Maugham v. Mason, i Ves. & B. 410; Jessopp v. Watson, i Myl. & K. 665; 
Flint V. Warren, 14 Sim. 554, 16 Sim. 124; Shallcross v. Wright, 12 Beav. 505, and 
Hamilton v, Foote, Ir. R. 6 Eq. 572. 

* See Biggs v. Andrews, infra^ and Griffith v. Ricketts, mfra. 



go HARVARD LAW REVIEW. 

and require a reassignment of the property at any moment. So 
far, however, as regards the question of equitable conversion, the 
courts have generally failed to recognize even this latter distinction. 
On the contrary, as an assignment for the benefit of creditors gen- 
erally contains, in terms, a direction to the assignees to sell the 
property assigned, the courts have generally assumed that this 
direction alone was sufficient to convert any land included in the 
assignment into money in equity. Thus, in Biggs v. Andrews,^ 
where one Biggs conveyed and assigned all his property to two 
trustees in trust to sell the same, and pay his debts out of the pro- 
ceeds, and hold the surplus in trust for himself, and he died before 
his land was all sold, it was held that all his property devolved, at 
his death, on his personal representatives; but, though there is 
reason to believe that the decision was in accordance with the 
wishes of the deceased, yet it seems to be very clear that it was 
wrong in principle ; for it appears that Biggs made the conveyance 
and assignment, not because he was insolvent, or supposed him- 
self to be so, but because he was out of health, and wished to retire 
at once from business ; and accordingly he had selected the two 
trustees to wind up his business for him. It is clear, therefore, 
that, in making the conveyance and assignment he made himself 
the sole cestui que trust, no new right whatever being conferred 
upon his creditors ; that the trustees were simply his agents, though 
clothed with the naked legal ownership of all the property, and, 
therefore, he could have revoked their authority at any moment, 
and required them to reconvey and reassign the property to him. 
They could also have given up the agency at their pleasure, and, 
therefore, could not have been compelled to sell any of the land. 

So also in Griffith v, Ricketts,* where an equity of redemption 
was conveyed to trustees in trust to sell the same for the payment 
of the grantor's debts, any surplus to be paid to the grantor, " his 
executors, administrators, and assigns," it was held that, upon the 
grantor's death, the equity of redemption devolved in equity upon 
his personal representative, subject, of course, to any charge which 
the conveyance had created. The judgment, however, seems to 
rest chiefly, if not wholly, upon the words which I have placed 
within quotation marks. To me, however, it seems clear that 
those words have no bearing upon the question. The only thing 
that could cause an equitable conversion of the land into money 

1 5 Sim. 424. ■ 7 Hare 299. 



EQUITABLE CONVERSION. 9I 

was the direction to the trustees to sell the land ; and the words 
quoted could not even aid in creating an equitable conversion, 
unless they constituted a gift of any surplus which should be pro- 
duced by the sale ; and it cannot be seriously claimed that they 
did constitute such a gift. Wigram, V. C, says * : " The first ques- 
tion is how the case would be if the trustees had sold the land 
in the lifetime of the grantor, and had the money in their hands. 
In that case it would, I apprehend, clearly belong to the personal 
representative of the grantor." Undoubtedly it would, but the 
plain reason seems to me to be that it would be a part of the 
grantor's personal estate at the time of his death, and hence would 
devolve like his other personal estate.^ 

Finally, in Clarke v. Franklin,' where land was granted and con- 
veyed to trustees, subject to a life estate in the grantor, in trust to 
convert the same into money at the grantor's death, and pay out 
of the net proceeds six sums of £^0 each and one sum of i^20, to 
persons named, or such of them as might be living at the grantor's 
death, and no valid disposition was made of the residue of the net 
proceeds, it was held that the land was converted into money in 
equity from the moment of the delivery of the deed of conveyance, 
and hence that it devolved in equity, at the grantor's death, as if 
it were money. It will be seen, however, that the deed in this case 
is of a very different nature from that in either of the two preced- 
ing cases ; for, instead of being an assignment for the benefit of 
creditors, it seems to have been a substitute for a will. Accord- 
ingly, the grant which it made was not to take effect in possession 
until the grantor's death. So also the several sums of money 
which were charged on the land appear to have been gifts, and 
would, therefore, have taken the form of pecuniary legacies, if 
the document had been a will. On the other hand, the deed 
took effect immediately on its delivery, and, unlike a will, was 
irrevocable. 

There is also another, but wholly different class of cases, in which 
money is directed to be laid out in the purchase of land, and yet 
the ownership of the land, when purchased, will be just where the 
ownership of the money was when the purchase was made, namely, 
where land is settled, the legal ownership being vested in trustees,* 

1 Page 313. « Sec 18 Harv. L. Rev. 4-9. 

» 4 K. & J. 257. 

^ If the legat ownership is not vested in trastees, but the limitations of the settle- 
ment are legal, the same object is accomplished by means of a power. 



92 HARVARD LAW REVIEW. 

and the latter are authorized to sell the land, but are directed to 
invest the proceeds of the sale in other land, and the land is 
accordingly sold, but, before other land is purchased, the question 
arises whether the money is, from the moment of the sale, con- 
verted in equity into land; and this question has always been 
answered in the affirmative,^ and seems never to have been sup- 
posed to be open to doubt; and yet it seems to be clear, upon 
principle, that it ought to have been answered in the negative. 
Neither the direction to reinvest the money in land, nor the actual 
reinvestment of it in land, causes any change in ownership of the 
settled estate, for, though no such direction, or even authority, had 
been given, yet, when the land was sold, the proceeds of the sale 
would have followed the limitations of the settlement, they taking 
the place of the land. The only reason, therefore, for directing 
the reinvestment of the money in land is that the settlor prefers 
land as an investment, — not that he wishes the estate to continue 
to devolve in equity as if it were land, notwithstanding the land is 
sold, as it will so devolve in any event It has been seen, more- 
over, that, when money is converted in equity into land by a direc- 
tion that it be exchanged for land, what actually takes place is 
this : the person who gives the direction, at the same time creates 
a right in another person to have the exchange made, and then to 
have the land, or some portion thereof, or some estate therein 
conveyed to him ; and the money is said to be converted immedi- 
ately into land in equity, because, if the person in whom such right 
is created shall die, intestate, before the actual exchange is made, 
his right will devolve in equity upon his heir as if it were land. In 
the case now under discussion, however, there is nothing of this 
kind. On the contrary, each person who will, under the settle- 
ment, have an interest in the land when purchased, has, in the 
meantime, the same interest in the money, and the land will, when 
purchased, simply take the place of the money, just as, when the 
original land was sold, the money took the place of the land. If, 
therefore, this money will devolve as if it were land in equity, by 
reason of its having been converted in equity into land, it must be 
because in equity it is land, f. ^., because it has, by a fiction, been 
transmuted by equity. In other words, if the money has been con- 
verted in equity into land, the conversion must have been direct, 

1 Chandler v. Pocock, 15 Ch. D. 491, 497, 16 Ch. D. 648; Walrond v. Rosslyn, 11 
Ch. D. 640; In re Duke of Cleveland's Settled Estates, [1893] 3 Ch. 244; /« f» 
Greaves's Settlement Trusts, 23 Ch. D. 313. 



EQUITABLE CONVERSION. 93 

and yet there is no ground upon which equity can make a direct 



conversion.^ 

As, however, money into which settled land has been converted 
will follow the limitations of the settlement, whether such money 
be treated as money or as land, the reader may think the question 
which I have been considering is not of much practical importance. 
It is always important, however, that a legal question should not 
only be correctly decided, but that the reasons given for the 
decision should also be correct, it being impossible to foresee 
what mischiefs may result from erroneous reasons given for correct 
decisions. Moreover, if the money into which settled land has 
been converted be erroneously held to have been reconverted in 
equity into land, the result is not likely to be the same as if what 
is money in fact had been treated as money in equity also, unless 
the equitable conversion of the money into land is confined to the 
limitations of the settlement; and yet we have had too much oc- 
casion to see that, when money is covenanted or directed to be 
laid out in the purchase of land, and the land to be settled, the 
courts always hold that the money is converted into land in equity, 
not merely to the extent of the limitations in the settlement, but 
also as to the reversionary interest retained by the settlor, 1. ^., not 
only as to the persons in whose favor the settlement is to be made, 

1 For the reason stated in the text, as well as for another reason, the case of Ashby 
V. Palmer, i Mer. 296, i Jarm. on Wills, ist ed., 527, seems to have been erroneously 
decided, though that was a case of converting land into money, — not money into land. 
In that case, a testator, who was a widow, and had an infant daughter and only child, 
devised all her land to trustees in trust to sell the same for the payment of debts, and 
for educating and bringing up the daughter, and, when the latter attained twenty-one 
or married, the trustees were directed to pay to her any proceeds of the sale still re- 
maining in their hands. The daughter became a lunatic before she attained full age, 
and so remained till her death, — more than fifty years after the will was made. None 
of the land having been sold. Sir W. Grant, M. R., held that the daughter's next of kin 
were entitled to it. It seems to be clear, however, first, that the land descended in 
equity to the daughter, and, therefore, that, if it had been sold, the proceeds of the sale 
would have belonged to her in equity, subject to any use which the trustees were 
authorized to make of them. Consequently, a sale of the land would have been 
attended with no alienation of the proceeds of the sale, and so the direction to sell 
caused no equitable conversion. Secondly, it seems equally clear that the trust was 
to cease on the daughter's attaining twent)'-one or marrying, unless debts should still 
remain unpaid. Certainly, the trustees were not authorized to sell the land after the 
daughter attained her full age or married, except for the payment of debts. Assuming, 
then, that the direction to sell for payment of debts caused no equitable conversion, 
there ceased to be any equitable conversion when the daughter attained twenty-one, as 
a direction to sell cannot possibly cause an equitable conversion after it has ceased to 
confer any authority. 



94 HARVARD LAW REVIEW. 

but also as to the settlor and those claiming under him, and to 
this rule the case now under consideration is no exception. Thus» 
in Walrond v. Rosslyn,* where, by marriage settlement, the in- 
tended husband settled land in the usual manner, and the settle- 
ment contained the usual power of sale and exchange, and, in case 
of a sale, the proceeds were to be invested in other land, which 
was to be settled to the same uses to which the land sold was 
settled, and some of the land had been sold, but the proceeds had 
not been invested in other land, and all the limitations of the 
settlement had come to an end, except that in favor of the in- 
tended wife by way of jointure, so that the proceeds of the sale 
had confessedly become the absolute property of the settlor, 
subject only to said jointure, and the settlor had died intestate, 
it was held by Sir G. Jessell, M. R., that said proceeds must be 
treated as land in equity, and consequently that they devolved 
upon the settlor's heir ; and yet such proceeds ought, upon prin- 
ciple, to have been held to devolve upon the settlor's next of kin, 
and that for three reasons : first, the jointress had the same right 
in said proceeds that she would have had in land purchased with 
them, and hence there was no equitable conversion of said proceeds 
into land ; secondly, the jointress had only a charge on the land 
originally settled, her jointure being by way of a legal rent-charge, 
and, for that reason also, there was no equitable conversion of said 
proceeds in her favor; thirdly, in no possible view could said 
proceeds be converted in equity, except in favor of the jointress, 
nor even in her favor for any longer period than her life. 

So in Chandler v. Pocock,* where, by a marriage settlement, the 
father of the intended wife settled land to the use of himself, the 
intended husband, and the intended wife, successively for their 
respective lives, remainder, in the events which happened, to 
such uses as the intended wife should by will appoint, remainder 
in default of appointment by her, to the settlor in fee, and the 
settlement contained a power of sale, the proceeds of the sale to 
be invested in other land, and the land was sold accordingly for 
consols, but the consols had not been invested in other land, and 
the wife by her will bequeathed all the residue of her personal 
estate and effects whatsoever, and the question was whether this 
bequest operated as an appointment of the consols under s. 27 of 



1 II Ch. D. 640. 

2 15 Ch. D. 491, 497, 16 Ch. D. 648. 



EQUITABLE CONVERSION. 95 

the Wills Act,i it was held, first, by Sir G. Jessell, M. R., and 
afterward by the Court of Appeal, that it did. Was the decision 
correct? There seems to be no room to doubt that it carried out 
the intention of the testator, and, if the consols were personal 
property in equity, as they were in fact, the question would not 
even have arisen. Yet both courts proceeded on the assumption 
that the consols had been wholly converted in equity into land, 
and, on that assumption, the decision involved the somewhat 
startling doctrine that the term " personal property," in s. 27 of 
the Wills Act, meant '' actual personal estate, though constructively 
converted into land," 1.^., that the Legislature, in enacting that 
section, wholly ignored the doctrine of equitable conversion. 

In In re Greaves's Settlement Trusts,^ by marriage settlement, 
the intended husband settled land on the intended wife for her 
life, retaining the reversion in fee in himself. The settlement con- 
tained a power to sell the land, the proceeds to be invested in 
other land ; and the land was accordingly sold, but the proceeds 
were invested in new three per cents, and so remained ; the wife 
survived the husband, who bequeathed all his money in the public 
funds or elsewhere to his children equally, and Frye, Justice, held 
that the new three per cents did not pass, the same being con- 
verted in equity into land, and the bequest not operating as an 
appointment under s. 27 of the Wills Act. The consequence, 
therefore, of holding that the new three per cents were converted 
in equity into land, was that the testator's intention as to their 
disposition was wholly frustrated ; though this was only because 
the conversion was held to extend to the husband's reversionary 
interest If it had been held either that there had been no 
equitable conversion, or that the equitable conversion extended 
only to the wife's life interest, the testator's intention would have 
been fully carried out. 

Lastly, in In re the Duke of Cleveland's Settled Estates,^ where 
settled land was vested in the Duke of Cleveland as tenant for life 
in possession, remainder to his first and other sons successively in 
tail male, remainder to said Duke in fee, and the same was sold 
under a power conferred by a private Act, which directed the 
proceeds of the sale to be invested in other land, but they were 
invested in consols instead, and the Duke afterwards died without 
issue, having devised his residuary real and personal estate to 

1 7 Wm. IV. & I Vict. c. 26. « 23 Ch. D. 313. 

• [1893] 3 Ch. 244. 



S>6 HARVARD LAW REVIEW. 

trustees in trust for the Hay family, the Court of Appeal held that 

said consols passed under said residuary clause, but that they 

passed as land ; and yet the Duke's remainder in fee, which was all 

that passed by his will, was entirely outside the settlement, and so 

the decision is open to the same objection as the decision in the 

preceding case. 

ۥ C. Langdell. 
Cambridge, October, 1905. 



THE U ABILITY OF CORPORATIONS. 97 



THE LIABILITY OF CORPORATIONS ON 
CONTRACTS MADE BY PROMOTERS. 

THE law is settled to the eflfect that an agreement entered into 
between a third person and a promoter, prior to the exist- 
ence of the corporation, is not binding upon it, although made on 
account of the corporation and with the expectation that it will be 
liable. It is immaterial whether the agreement in question is in 
the name of the prospective corporation or that of the promoter. 
It is an equally unquestioned rule that, under certain circumstances, 
the corporation may become liable on terms substantially the same 
as those embodied in the agreement antedating the corporate ex- 
istence. The purpose of this article is to consider the legal prin- 
ciples on which this liability rests. 

For the sake of clearness, it is advisable to refer at the outset to 
a certain class of cases in which corporate liability exists. Though 
the principles involved are not properly within the scope of the 
present discussion, the tendency to confuse the basis of liability in 
those cases with cases covered here makes it necessary to point 
out briefly the theory on which those decisions proceed. 

In many jurisdictions statutes make the corporation liable for 
certain expenses attending the organization and promotion of the 
company ; more commonly the charter or the deed of settlement 
makes similar provisions.^ Where such is the case, persons per- 
forming the services provided for in reliance upon the provisions 
may recover against the corporation when formed, the remedy 
being statutory.^ 

When the promoter has made a contract with a third person, 
the corporation may become a party to it by novation. It is ob- 
vious that the doctrine involved here is not peculiar to promoters, 
but extends to all contracts dealing with subject-matter within the 
scope of corporate power. Neither is it material at what time 
the contract was entered into with reference to the corporate 
existence. 

1 Lindley, Companies, 6th ed., 196. 

> Scott V. Lord Ebury, L. R. 2 C. P. 254 ; lindley, Companies jM/ni, 

7 



98 HARVARD LAW REVIEW. 

The corporation may also obtain rights under a contract by 
means of an assignment from the promoter or other parties.^ 
Here, again, it is of no consequence whether the contract is 
with a promoter or not, and the time when it is made is equally 
immaterial. 

A class of cases also exists in which the corporation is liable on 
the theory that a trust fund has been created by the corporation 
for the benefit of third persons, as a result of an agreement be- 
tween the promoter and the corporation. In Touche v. Metro- 
politan Ry. Warehousing Co.,* the plaintiff was allowed to recover 
in equity on the theory that the corporation had made the pro- 
moter trustee of the sum in question. The decision has been 
doubted, as to the propriety of the finding that a trust relation 
existed under the facts in evidence,^ although the principle is 
admitted that a trust may be created in favor of a third person by 
virtue of an agreement between the corporation and the promoter. 
In those jurisdictions where the real party in interest is permitted 
to sue, the third party may frequently have a remedy against the 
corporation, as a result of a provision for payment contained in a 
valid contract between the promoter and the corporation. 

These exceptional cases being disposed of, it is now possible to 
take up the cases, which are the immediate object of this discus- 
sion, where an agreement has been entered into between a pro* 
moter and a third person, on which it is now proposed to hold the 
corporation liable. The common form of statement is that a cor- 
poration, by ratification or adoption, becomes liable on contracts 
made by a promoter on its account, prior to organization.^ This 
statement, as far as it involves any theory of ratification, is clearly 
incorrect if taken literally, and repugnant alike to principle and to 
the great weight of authority.' Ratification is possible only where 
a contract is made by a person purporting to act for an existing 
principal, who is capable of making the contract himself at the 
time it is entered into. Clearly the doctrine can have no appli- 
cation in the class of cases discussed here, since the alleged prin- 
cipal is non-existent when the contract is made. Furthermore, the 



1 Werdeman v. Soc. Genl D. Elec., 19 Ch. D. 250. 
« L.P. C. A. Ca8.67i. 

* Gandy v. Candy, 30 Ch. D. 57 ; In re Empress Engineering Co., 16 Ch. D. 125. 

^ Stanton v. New York, etc., Ry. Co., 59 Conn. 272; SpiUer v. Paris Skating 
Rink Ca, 7 Ch, D. 368. 

* In rt Empress Engineering Co., 16 Ch. D. 125. 



THE LIABILITY OF CORPORATIONS. 99 

promoter is not an agent in any proper sense of that term. His 
activities are confined to the promotion and organization of the 
corporation, and cease when the organization is complete. It is 
evident that the principles of agency will not serve in the solution 
of the question. The meaning of the term adopHan, usually coupled 
with ratification as an alternative, by means of which the corpora- 
tion may become liable, is somewhat obscure as used by the courts 
in this connection. It has been defined '*to take or receive as 
one's own that with reference to which there existed no prior rela- 
tion, colorable or otherwise."^ With many courts the meaning is 
apparently the same as ratification. Properly it can be regarded 
only as a synonym of acceptance.^ 

The point of departure in the discussion, as far as the English 
cases are concerned, is a group of cases decided by Lord Cot- 
tingham.' Of these, Edwards v. Grand Junction Ry. Co. is the 
most frequently cited, on account of the full discussion by the 
court. The importance of the case justifies a somewhat complete 
statement. 

The bill prayed an injunction restraining the defendant com- 
pany from proceeding in violation of an agreement made by the 
projectors of the defendant company with the plaintiffs, by the 
terms of which the plaintiffs were to withdraw all opposition to 
the granting of a charter to the proposed company, in return for 
which the projectors promised to have inserted in the company's 
articles certain amendments respecting the width of a bridge over 
the turnpike operated by the plaintiffs. The corporation when 
formed proceeded to build the road, ignoring entirely the agree- 
ment with the projectors. The agreement in question was never 
acted upon by the corporation. Lord Cottingham, in granting 
the injunction, stated that the corporation stands in the place of 
the projectors and succeeds to their rights and must assume their 
liabilities. In reply to the argument that no undertaking by the 
corporation is shown, the court said : " The question is not whether 
there can be a binding contract at law, but whether the court will 
permit the company to use its powers under the act in direct oppo- 
sition to the arrangement made with the trustees prior to the act, 
upon the faith of which they were permitted to obtain powers." 

^ Schreyer v. Turner Flouring Co., 29 Ore. i. 

* liiuUey, Companies, 6th ed., 232. 

* Edwards v. Grand Junction Ry. Co., i Myl. & Cr. 650; Stanley v. Chester & B. 
Ry. Co., 9 Sim. 264; Webb v. L. & P. Ry. Co., 9 Hare 129. 



ICX) HARVARD LAW REVIEW. 

The decision, which was followed in two later decisions ^ by the 
same judge, goes much further than any other case, both in its 
facts and conclusion, since the company had not in any way in- 
dicated an assent to the agreement of the projectors, making it 
impossible to invoke any doctrine of ratification or adoption. 

The acceptance of the charter cannot be regarded as such an 
assent, since the company derives its charter from Parliament and 
not from the plaintiff, hence its enjoyment cannot be regarded 
as inconsistent with the defendant's claim of non-liability on the 
agreement.* 

The decision has been repeatedly criticised in the later English 
decisions, and while not in terms overruled, it is seriously discred- 
ited as a precedent.' The decision is criticised for assuming any 
identity between the projectors and the corporation itself. If the 
identity exists, then the conclusion that the company is liable fol- 
lows without question, as it would be against conscience for a 
group of men, acting under the cloak of a legal fiction, to ignore 
obligations undertaken by them in another capacity. There may 
be such an identity in a particular case, but as the probability 
is against it, the court is not justified in assuming such identity 
without proof. The primary purpose of the promoter is to interest 
investors in the proposed corporate enterprise. Almost invariably 
when the corporation is organized, persons not concerned in the 
projection are allottees of shares. Frequently the projector is not 
a member of the corporation at all. The injustice of the decision 
lies in subjecting innocent subscribers to obligations which they 
did not contemplate and which they cannot ascertain by reason- 
able diligence.^ 

If the theory advanced as to identity by Lord Cottingham be 
denied, it is difficult to find any ground for relief in equity, unless 
a contract be made out between the third person and the corpora- 
tion, and such is apparently the view taken by the later decisions.^ 



» Suprat p. 99, note 3. 

' In re Skegness & St. Leonards Tramways Co., 41 Ch. D. 215. 

* Fry, Specific Performance of Contracts, 4th ed., 103 ; Caledonian & Dumbarton- 
shire Ry. Co. V. Magistrates of Helensburg, 2 Macq. H. L. Cas. 391 ; Preston v. L. M. 
Ry. Co., 5 H. L. Cas. 605; Kelner r. Baxter, L. R. 2 C. P. 174; Melhado et aL v. Porto 
Alegre, N. H. & B. Ry. Co., L R. 9 C. P. 503; In re Empress Engineering Co., 16 
Ch. D. 125. 

* C. & D. Ry. Co. V. Magistrates of Helensburg, supra ; Preston v. L. M. Ry. Co., 
tupra ; Earl of Shrewsbury v. N. Staffordshire Ry. Co., L. R. i Eq. 593. 

* Gooday v. Colchester, etc., Ry. Co., 17 Beav. 132; Caledonian & D. Ry. Co. 



THE LIABILITY OF CORPORATIONS. lOI 

The same conclusions are reached in cases ^ where the third 
person is attempting to prove in the winding-up proceedings of 
the corporation. In these cases the corporation had after organi- 
zation passed resolutions or taken other steps for the purpose of 
adopting or ratifying the contract made on its account, — a circum- 
stance not present in the cases decided by Lord Cottingham, — yet 
the right to prove was denied. 

In the case of In re Northumberland Hotel Co.,* the directors 
of the company not only adopted the contract made by the pro- 
moter on its account, but took possession of leasehold premises 
obtained under the contract, compromised a suit for specific per- 
formance brought by the lessor, and paid rent to him, yet the 
lessor was not allowed to prove on the contract in the winding up 
proceedings, on the ground that no contract was shown to subsist 
between the lessor and the corporation. It is admitted by the 
court that if the lessor could have shown a new contract entered 
intd between the corporation and himself, proof would have been 
allowed, but evidence that the directors passed resolutions adopt- 
ing the agreement and took possession of property under it will 
not establish such a contract, since all those steps were obviously 
taken by the company under the assumption that the old contract 
was valid, and cannot be taken as showing a new contract. 

In Scott V. Lord Ebury,* where the action was to recover from 
the promoters for money advanced by the plaintiffs to meet the 
parliamentary expenses incurred in securing the charter of the 
company, Willes, J., in reply to the contention that the debiting 
of the company by the plaintiff on its books, coupled with a reso- 
lution of the board of directors of the company confirming the 
agreement made by the promoters, showed a new contract which 
would discharge the promoter, observed that one element was 
lacking to make such a conclusion possible, namely, the assent of 
the bank. The acts urged as showing a new contract were taken 
in the mistaken belief of liability under the original contract, and 
there is no evidence of any meeting or agreement between the 
bank and the corporation. 

Precisely what evidence will justify the conclusion that a new 

V. Biagistrates of Helensburgh 2 Macq. H. L. Cas. 591 ; Preston v. L. M. Ry. Co., 
5 H. L. Cas. 605. 

^ In n Empress Engineering Co., 16 Ch. D. 125; In re Northumberland Hotel 
Co., 33 Ch. D. 16; Kelner v. Baxter, L. R. 2 C. P. 174 {sembU)\ Hogat Pneumatic 
Tyre Co. r. Clipper Pneumatic Tyre Co., 71 L. J. Ch. 158 (semble). 

« L. R. 2 C. P. 254. 



I02 HARVARD LAW REVIEW. 

contract has been made is indicated in the case of Howard v. 
Patent Ivory Co.,^ where one Jordan entered into an agreement 
with one Wyber, acting on behalf of the defendant company about 
to be formed, to sell certain property to the corporation. The 
corporation was organized, both the articles and memorandum 
providing for the adoption of the agreement in question. At a 
meeting of the directors, at which Jordan was present, resolutions 
were passed adopting the agreement and accepting the offer of 
Jordan to take part of the purchase price in debentures, and under 
the resolution the company's seal was affixed to the documents 
transferring a leasehold to the company and the debentures to 
Jordan. The company entered into possession of the leasehold 
premises and transacted business thereon. Subsequently the 
company was wound up, and the liquidator took an assignment of 
the rest of the property to be transferred under the agreement by 
Jordan to the company. 

The court found on these facts that a new contract was entered 
into. The conclusion of the court in In n Northumberland Hotel 
Co.' was criticised but distinguished from the case at bar, on the 
ground that Jordan was present at the directors' meetings and par- 
ticipated in a modification of the original contract, in effect making 
a new contract. 

It is questionable whether Edwards v. Grand Junction Ry. Co.' 
would be followed by the English courts* even if the precise ques- 
tion were involved. It. certainly has been thoroughly discredited 
on principle, and the view now taken is that the corporation is not 
liable on contracts antedating its formation, although made on its 
account, but that the corporation may become liable on a new 
contract made directly between the corporation and the other 
party. In determining whether or not such contract exists, steps 
taken by either party in the belief that the original agreement 
made through the promoter still exists will not be considered. The 
proposition just stated, of course, excludes the exceptions pre- 
viously referred to, where the liability rests on some principle 
of trust, novation, assignment, or express provisions of statute 
or charter. 

The American cases, both at law and in equity, are overwhelm- 
ingly in favor of holding the corporation liable on contract ante- 
dating its existence, wherever it has " ratified or adopted " the 

» 38 Ch. D. 156. 2 Supra. • .SW/ro. 

* Fry, Specific Performance of Contracts 107. 



THE LIABILITY OF CORPORATIONS. IO3 

same, ratification or adoption being shown either by express reso- 
lution of the managing body or by accepting the benefits or fruits 
of the contract.^ 

The American cases without exception are subsequent in time to 
the group of cases decided by Lord Cottingham^ which are cited 
with approval as decisive of the questions decided by the American 
courts* and apparently form the basis of the generally accepted 
American doctrine. No case has been found, however, that goes 
as far as the English cases referred to, the American courts insist- 
ing in every instance on some act by the corporation subsequent 
to organization showing an intent to be bound. 

The American courts, owing, perhaps, to the obliteration of dis- 
tinctions between law and equity in matters of procedure, have 
failed to note the limitations which the circumstances of the Eng- 
lish cases impose upon them as general legal propositions. The 
principles underlying the liability imposed are as a rule very 
meagerly discussed ; the liability is assumed rather than justified. 
The criticisms of Lord Cottingham's view by the later English cases 
are not noticed by the American courts, although in a few instances 
the arguments urged against their soundness are dealt with.' 

A number of cases come within the exceptional classes noted in 
discussing the English decisions where the liability properly rests 
on a novation or assignment.^ 

^ Little Rock & Ft. Smith Ry. Ca v. Perry, 37 Ark. 164; M. & H. Hardware Co. 
V. Towers Hardware Co., 87 Ala. 206 {semblt) \ Arapahoe Investment Co. v. Piatt, 5 
Colo. App. 515 ; Carter z/. San Francisco Sugar Ref. Co., 19 Cal. 220 ; Stanton v. N. Y., 
etc., Ry. Co., 59 Conn. 272 ; The Georgia Co. v, Castlebury, 43 Ga. 187 (senMe) \ Smith 
V. Parker, 148 Ind. 127; Dubuque Female College v. Township of Dubuque, 13 Iowa 
555; Bank of Forest v, Argill Bros. & Co., 34 So. Rep. 325 (Miss.) ; Esper v. MuUer, 
91 N. W. Rep. 613 (Mich.) {semble) ; Grape Sugar & Vinegar Mfg. Co. v. Small, 40 Md. 
395; Oaks V, C. W. Co., 143 N. Y. 430; Law r. Railway Co., 45 N. H. 370; Schreyer 
V. Turner Flouring Co., 29 Ore. i ; Bell Gap Ry. Co. v. Christy, 79 Pa. St. 54 ; Ireland 
V. Globe Milling Co., 20 R. I. 190 (semHe) ; Huron Printing & Binding Co. v. Kittleson, 
4 So. Dak. 520 ; Chase v. Redfield Creamery Co., 1 2 So. Dak. 529 ; Kaeppler v. Red- 
field Creamery Co., 81 N. W. Rep. 907 (So. Dak.) ; Pittsburg, etc., Mining Co. v, 
Quentrell, 91 Tenn. 693 ; McDonough v. Bank of Houston, 34 Tex. 309 ; Buffington 
V, Bordon it al,, 80 Wis. 635 ; Whitney r. Wyman, loi U. S. 392 {semble), 

« Edwards v. Grand Junction Ry. Co., Stanley v. Chester & B.-Ry. Co., W^ebb v, L. 
& P. Ry. Co., supra, 

• N. Y., etc., Ry. Co. v, Ketchum, 27 Conn. 170; Safety Deposit Life Ins. Co. v. 
Smith, 65 111. 309; Park v. Modem Woodmen of America, 181 111. 214; Oldham 
V. Mount Sterling Imp. Co., 103 Ky. 529. 

* Colo. L. & W. Co. V. Adams, $ Colo. App. 190; Stanton v. N. Y., etc., Ry. Co., 59 
Conn. 272 {sembU) ; Oldham v. Mount Sterling Imp. Co , 103 Ky. 529; Esper v. Miller, 
91 N. W. 613 (Mich.) (semble) ; Snow v, Thompson Oil Co., 59 Pa. St. 209 (sembU), 



I04 HARVARD LAIV REVIEW. 

The view that a coq>oration may be estopped to deny that it is 
bound by the contract made by the promoter is advanced by a 
well known writer on corporations,^ and is accepted as the basis of 
decision by a few courts.^ The application of the principle is not 
clear, since the action of the corporation in approving the contract 
made on its account and in taking possession under it is attributable 
ordinarily to the belief shared by both parties that the original con- 
tract is binding upon them. How, then, is it possible to estop the 
corporation by conduct obviously due to a mutual mistake as to 
the legal liabilities of the parties? 

In a number of jurisdictions the agreement between the pro- 
moter and third person is regarded as an open offer to the corpo- 
ration, which it may accept when organized, and thus create a new 
contract between the third person and the corporation.' A resolu- 
tion adopting or ratifying the original agreement, or the acceptance 
of the fruits of the contract is generally regarded as sufficient proof 
of acceptance. 

It is evident that practically all of the cases decided on the 
ground of ratification or adoption could rest on the grounds stated 
in the cases just referred to, since in every instance the corporation 
has assented to the agreement made on its account, either in terms 
or by implication. 

Both the English and American decisions recognize the possi- 
bility of a new contract between the corporation when organized 
and the third person, the broad line of distinction between the cases 
being the manner in which such contract can be made out ; the Eng- 
lish courts taking the position that acts of the corporation which are 
clearly attributable to the erroneous belief on its part that it is 
liable on the original contract cannot be received as evidence of a 
new contract, particularly when coupled with the further fact that 
direct negotiations between the third party and the corporation 
cannot be shown. The American courts, on the other hand, re- 
ceive as evidence of a new contract all acts indicating an intent by 
the corporation to receive the benefits of the original contract. 

1 Thompson, i Commentaries on Corporations, § 480. 

> Blood V. La Serena Land & Water Co., 121 Cal. 221 ; Grape Sugar & Vinegar 
Mfg. Co. V. Small, 40 Md. 390 {sembU). 

* Smith V. Parker, 148 Ind. 127 ; Penn. M. Co. v. Hapgood, 141 Mass. 145 {umUe) ; 
Holyoke Envelope Co. v, U. S. Envelope Co., 182 Mass. 171 {s€mUi)\ Waetherford, 
etc., Ry. Co. v. Granger, 86 Tez. 350; E. & C. Oil Co. v, Burks, 39 S. W. Rep. 966 
(Tex.) ; Wall v. Niagara Mining & Smelting Co., 20 Utah 474 ; Pratt v. Othkosh Match 
Co., 89 Wis. 406. 



THE LIABILITY OF CORPORATIONS. lOS 

The Supreme Court of Massachusetts approaches most nearly the 
present English view,^ when it declares that a corporation cannot 
become liable on its promoters' contract by ratification or adop- 
tion. In a later decision,' the court, by way of dictum^ intimates 
that the acceptance of benefits may be evidence of a new contract 
between the third party and the corporation. 

The American decisions, while practically unanimous in the re- 
sult reached, are far from satisfactory as to the legal principles 
underlying the liability. The English cases, on the other hand, 
have developed a logical, consistent theory of liability. The con- 
sequences of the liberal American view on the question of proof 
are not unjust: the corporation is protected against improvident 
agreements made on its account by promoters, since it has the 
power of acceptance or refusal. It is submitted that an equally 
just result is possible without doing violence to recognized prin- 
ciples of agency and contract. 

H. S, Richards. 

University of Wisconsin. 

* Abbott it al. v, Hapgood et ai,, 150 Mass. 248. 

* Holyoke Envelope Co. v. U. S. Envelope Co., 182 Mass. 171. 



106 HARVARD LAiV REVIEIV. 



DEBTOR'S INTERFERENCE IN THE ELEC- 
TION OF A TRUSTEE IN BANKRUPTCY. 

/^^ENERALLY in the Continental systems of bankruptcy legis- 
^^ lation it is the policy of the law for the court to appoint its 
own official administrator to handle the bankrupt's estate. The 
creditors may be consulted, or even have some advisory or super- 
visory control over the official court administration, but the actual 
executive control of the assets is in the hands of the court official.^ 

In the English bankruptcy system it is a cardinal principle that 
the creditors are to have the full control of the administration of 
the bankrupt's estate. The court is merely the supervisory power. 
The last English Bankruptcy Act of 1883* gives the creditors an 
absolute right to name the trustee who shall administer the estate 
in their behalf. The Board of Trade may for cause object to the 
selection of the creditors, and the High Court will pass on the va- 
lidity of the objections, which may be for any of three causes: 
first, that the appointment was not made in good faith; second, 
that the appointee is not a fit person. The only persons abso- 
lutely disqualified are the official receivers, or a person who has 
previously been removed from the office of trustee for misconduct 
or neglect. Third, that the relations of the appointee are such that 
it would be difficult for him to act impartially. 

In this country the policy of bankruptcy legislation on this sub- 
ject has not been uniform. Beginning with our first Bankruptcy 
Law in 1800, Congress gave to the creditors the fullest liberty in 
the choice of the trustee. The Act of 1800 provided that the 
major part in value of the creditors should choose a person or per- 
sons to whom the bankrupt's estate and effects should be trans- 
ferred.* No approval of the choice on the part of the court was 
provided for. 

In the Bankruptcy Act of 184 1, however, the Continental prac- 
tice was adopted. The title to the bankrupt's estate was vested in 
an assignee appointed by the court* 

^ Dunacomb, Bankruptcy, Columbia College Studies in History, etc., No. 2, p. 2. 
^ 46 & 47 Vict. c. 53. * Bankruptcy Act of 1800, § 6. 

^ Bankruptcy Act of 184 1, § 3. 



ELECTION OF BANKRUPTCY TRUSTEE. I07 

Evidently the system of official court assignees was found un- 
suited to American conditions, for in 1867 the Bankruptcy Act 
passed in that year followed more nearly the English practice. It 
left the creditors to choose one or more assignees of the estate 
of the debtor subject to the approval of the district judge.^ The 
general orders of the Supreme Court expressly prohibited the 
appointment by the district judges of any official assignees or any 
general assignees to act in any class of cases.^ 

The Bankruptcy Act of 1898 was closely modeled after the Act 
of 1867 regarding the selection of the trustee in bankruptcy, al- 
though its provisions are not wholly consistent. The bankruptcy 
court is invested with power to appoint trustees pursuant to the 
recommendation of creditors.' On the other hand, the creditors 
themselves are given the absolute right to appoint one or three 
trustees.* 

This conflict in the statute has led to a curious result Not only 
has the Supreme Court copied the old General Orders under the 
Act of 1867 that no official trustees shall be appointed,* but has 
engrafted a limitation on the free right of selection of the trustee 
on the part of the creditors that the appointment " shall be subject 
to be approved or disapproved by the referee or by the judge." * 
There is clearly no warrant for this usurpation on the part of the 
court. The General Order plainly seeks to borrow from the Act 
of 1867 one of its provisions that Congress has not seen fit to re- 
enact in the present statute. Although there has been no judicial 
disapproval of this order, one of the leading text-book writers on 
bankruptcy has already expressed doubts of its validity, and the 
expectation that this general order will not stand the scrutiny of 
the court that promulgated it.^ 

The seven years of practice under the present statute has fur- 
nished an unbroken precedent of the selection of the trustee by 
the creditors. The court never undertakes to exercise its right of 
appointment under its general power, and names a trustee under 
the express authority given it under section 44 only when the 
creditors fail or neglect to exercise their rights. The selection of 

1 Bankruptcy Act of 1867, § 13. 

* General Orders, IX, Supreme Court, October term, 1874. 

* Bankruptcy Act of 1898, § 2 (17). 

* Bankruptcy Act of 1898, § 44. 

» General Orders, XIV, 172 U. S. 657. 

* General Orders. XIII, 172 U. S. 657. 
7 Collier, Bankruptcy, 4th ed., 330. 



I08 HARVARD LAW REVIEIV. 

a trustee is an important and substantial right of the creditors. It 
is a matter of first importance in every case. Much of the success 
of the present Bankruptcy Act depends on an intelligent safeguard- 
ing of this privilege to the creditors on the part of the courts. 

Under our present statute one of the most important questions 
relating to the election of a trustee has arisen in a class of cases 
where the bankrupt seeks to influence or control the selection of 
the person who is to be trustee. The bankrupt may have much 
to gain from the appointment of a favorable trustee. Often his 
creditors are widely scattered and unknown to each other, their 
respective claims may be small, and important only in the aggre- 
gate. Negligent, complaisant, and friendly creditors will be only 
too ready to follow a request or suggestion of a debtor who may 
have traded with them for years or who may hold out hopes of 
future advantages. For a time at least the names and addresses of 
the creditors are in the exclusive control of the bankrupt. It is 
very easy to see how the debtor who desires to stifle an investiga- 
tion, or to regain speedy control of his estate can turn all this to 
his advantage. It is an easy matter for the bankrupt to solicit the 
claims or proxies of his various creditors and elect his nominee to 
the office of trustee over the eflforts of an unorganized and widely 
scattered body of creditors. It is, of course, obvious that such 
action is a gross fraud on the creditors, and that any court to 
whose attention this state of affairs is brought should make every 
efTort to defeat such a scheme. 

The first time such a question was brought to the attention 
of a court was in 182 1 in the English case of Ex parte Shaw} 
After a contested election a petition was presented in behalf of the 
defeated candidates to the Lord Chancellor, praying that the as- 
signment of the estate to the persons who had received the ma- 
jority of votes might be stayed and that the same be executed to 
them. One of the grounds of this request was that the election had 
been procured by the canvas and solicitation of the bankrupts. The 
Vice-Chancellor, Sir John Leach, was of the opinion that the choice 
should be avoided. " It is against the first principles and the 
whole policy of the bankrupt laws to permit bankrupts indirectly 
to choose their own assignees." When this question was presented 
to Lord Eldon on appeal, he dodged a decision by finding the 
choice invalid on other grounds. This case, however, has always 

1 iG. &J. 125. 



ELECTION OF BAa\KRUPTCY TRUSTEE. 109 

been cited as sustaining the view of the Vice-Chancellor, and it be- 
came a fixed principle of the English bankruptcy practice that 
such interference by the bankrupt avoided the election,^ until finally 
the subject seems to be satisfactorily covered by express provision 
of their bankruptcy statute. 

Unfortunately the courts in this country who have considered 
this subject have not agreed upon either the theory or method of 
dealing with the problem. All our courts recognize that the whole 
policy of the Bankruptcy Law is to give to creditors the free, de- 
liberate, and unbiased choice in the first instance of the person who 
is to administer the assets of the bankrupt estate. The present 
statute IS very carefully drawn to check undue control of the bank- 
rupt's affairs, either by a few interests, or by the bankrupt's influ- 
ence in connection with them to the prejudice of the general body 
of creditors.* To elect a trustee a majority vote both in number 
and value of the creditors present and voting is necessary.^ This 
insures that neither one large predominating creditor may choose a 
trustee in his interests, nor that several insignificant creditors in 
combination may elect a trustee to the prejudice of what maybe 
the only substantial interests in the proceedings. 

On the other hand, it is equally certain that an honest bankrupt 
can have no real interest in the choice of the trustee. The cred- 
itors alone are the beneficiaries in the administration of the estate. 

'^The trustee's duties are administrative, not judicial. It is not his 
special duty • to hold an even hand or an unbiased mind ' towards the bank- 
rupt^ but to make the most possible out of the assets, and in the performance 
of this duty mere bias or unfriendliness toward the bankrupt must be rarely, 
if ever, material Considering the number and frequency of fraudulent 
bankruptcies in the past, a zealous watch and scrutiny of an insolvent's trans- 
action cannot be looked upon as demerit, or as indicative of a lack of 
' competency ' in a trustee. And unfounded suspicions and prejudice even 
may be met by the honest merchant without fear." * 

Where there is evidence sufficient to establish that the bankrupt 
or his representatives have interfered with the election of a trustee, 
two possible courses seem to be open to the minority creditors. 
They may challenge the vote, or may demand that the referee 

^ Ex parte Molineauz, 3 M. & Ayr. R. 703 ; Ex parte Carter, 3 De G. & J. 1 16. 
s In re Henschel, 109 Fed. Rep. 861, 6 Am. B. Rep. 305. 
< Bankruptcy Act of 1898, § 56 a. 

♦ In re Lewensohn, 98 Fed. Rep. 576, 3 Am. B. Rep. 299. Sec also In re Clairmont, 
I N. B. Rep. 276. 



no HARl^ARD LAW REVIEIV. 

disapprove the election. Some of the cases have held that the 
mere fact that the vote is influenced or controlled by the bankrupt 
in his own interests is no ground for objecting to it The only 
mode of raising such an objection is by opposing the approval of 
the election.^ Other cases have allowed the challenge of the votes 
so cast,2 while one of the more recent cases held that the referee 
may either decline to receive the votes, or to approve the election.* 
The present Bankruptcy Law has very carefully defined the 
qualifications of the trustee: 

"Trustees may be (i) individuals who are respectively competent to per- 
forni the duties of that office, and reside or have an office in the judicial 
district within which they are appointed, or (2) corporations authorized by 
their charters or by law to act in such capacity and having an office in the 
judicial district within which they are appointed." ^ 

When the bankrupt is attempting to control the election of the 
trustee, he is usually sufficiently clever to select as his candidate 
some individual of pcisonally irreproachable character who is per- 
fectly competent to fill the position.* Conceding the validity of 
the General Orders, rule XIII, how can the referee withhold his 
approval to such a candidate if he is the selection of the unchal- 
leng'Cd vote of the majority in value and number of the creditors? 
Th^ discretion to approve or disapprove which he may exercise is 
not an arbitrary power. It must rest on the basis of some pro- 
visions of the statute.* 

•* The referee should not disapprove of the choice of a trustee by 
creditors, nor should he interfere with, or influence such choice 
except dpon clear proof of incompetency for performance of duty 
or non-residence."^ Even under the Act of 1867, in which, with 
one exception,® there was no specific disqualification for a trustee, 
and a general discretion to approve or disapprove of the election 

1 Re Noble, Fed. Cas. 10282, 3 N. B. Rep. 96; Re Frank, Fed. Cas. 5050, 5 N. B. 
Rep. 194; Re Bliss, Fed. Cas. 1543, i N. B. Rep. 78; Re Wctmore. Fed. Cas. 17466^ 
16 N. B. Rep. 514; Re Rekersdres, 108 Fed. Rep. 206, 5 Am. B. Rep. 811. 

' Falter v. Reinhard, 104 Fed. Rep. 292, 4 Am. B. Rep. 782, 106 Fed. Rep. 57, 
5 Am. B. Rep. 155: Re Henschel, supra; Matter of Law, 13 Am. B. Rep. 650. 

* Dayville Woolen Co., 114 Fed. Rep. 674, 8 Am. B. Rep. 85. 
« Bankruptcy Act of 1898, § 45. 

* Boston Dry Goods Company, 125 Fed. Rep. 226, 11 Am B. Rep. 97; Re Hen- 
schel, supra. 

* Bump, Bankruptcy, loth ed., 132. Cf. also Ex parte Sheard, L. R. 16 Ch. D. 107. 
' Re Lewensohn, supra. 

* A person who had accepted an unlawful preference. Act of 1867, § 5035. 



ELECTION OF BANKRUPTCY TRUSTEE. Ill 

was given to the district judge, with power to order a new election 
when " needful or expedient," the court considered it was justified 
in withholding its approval of the election only where there was a 
want of capacity or integrity in the candidate elected. Otherwise 
he was assignee " by virtue of the law." ^ 

The real point at issue is not whether the trustee so chosen is 
qualified so as to be approved or disapproved by the referee, but 
whether the votes which were wrongfully influenced by the bank- 
rupt shall be accepted. There is no doubt that a creditor is the 
only person entitled to vote for a trustee. If the referee upon in- 
quiry learns that the bankrupt is casting the votes in his creditors' 
names, it is obvious that he may reject such votes. If there is 
fraud practised on a creditor who votes in person, it is not much 
more difficult to find that, although it is the creditor who goes 
through the form of voting, yet in fact it is the bankrupt who casts 
the vote. So, too, in a case of collusion between a creditor and the 
bankrupt, it is the bankrupt who by consent of such creditor casts 
the vote in the creditor's name. In each of these cases it is the 
bankrupt's voice which is substituted for his creditors' in selecting 
the trustee. Just as the English Bankruptcy Law separates the 
objections which attack the election on the ground that the ap- 
pointment was not made in good faith into a different class from 
those objections dealing with the personal fitness of the appointee, 
so this method of dealing with our problem distinguishes the ques- 
tion of the votes from all questions of approval or disapproval of 
the trustee elected. 

The natural hesitancy of a referee formally to disapprove of the 
selection of some gentleman of character and standing in the local 
community who has been ensnared into the bankrupt's scheme 
often results in a substantial denial of the rights of the creditors to 
elect their trustee.^ It befogs the issue and begs the whole ques- 
tion for the referee to resort to a question of disapproving of the 
trustee. In fact, what the creditors ask the court to pass upon is 
not whether the trustee is personally qualified or disqualified, but 
whether or not he has been elected to the office by the votes of the 
creditors. When a referee finds that the bankrupt directly or in- 
directly controlled the votes, he finds that the creditors did not 
cast the votes. Just as in any election for any office the election 

1 In re Barrett, Fed. Cas. 1043, 2 N. B. Rep. 533 ; Re Grant, Fed. Ca«. 5693, 2 N. B. 
Rep. io6b CoHira, Re Wctmore, supra ; Re Bliss, supra. 
' Re Boston Dry Goods Co., supra. 



112 HARVARD LA IV REVIEW. 

judges reject false votes, irrespective of the candidate for whom 
they are cast, so in such cases it is the duty of the referee to refuse 
these votes without passing on the qualifications of the appointee. 

Moreover, there is an additional advantage in rejecting the votes 
rather than in disapproving of the trustee. If the court withholds 
its approval, it can neither declare the rival candidate elected, nor 
appoint a trustee of its own choosing. It can only order a new 
election.^ There is no promise that a second election will yield 
any better results. By rejecting the fraudulent or corrupted votes 
the ballots of the independent creditors will control the election, 
and the court may be assured of a competent official who is the 
real choice of those creditors of the bankrupt who are alert in 
their own interests and have no ulterior object other than the best 
possible administration of the bankrupt's estate. 

Lee M. Friedman. 
53 State St., Boston. 

^ Re Scheiffer & Garrett, Fed. Cas. 12445, 2 N. B. Rep. 591 ; Re McKellar, 116 Fed. 
Rep. 547, 8 Am. B. Rep. 699; Re Hare, 119 Fed. Rep. 246, 9 Am. B. Rep. 520. 



NEW PHASE OF EQUITABLE ESTOPPEL. Ill 



A NEW PHASE OF EQUITABLE ESTOPPEL. 

THE first distinctive enunciation of the modern doctrine of 
equitable estoppel was given by Lord Chief Justice Denham, 
in 1837, in the well known case of Pickard v. Sears,^ in these 
words : 

" Where one by his words or conduct wilfully causes another to believe 
the existence of a certain state of things, and induces him to act on that 
belief, so as to alter his own previous position, the former is concluded from 
averring against the latter a different state of things as existing at the same 
time." 

This rule, which has since been greatly extended, originated in the 
court of chancery, but is now generally applied to cases arising in 
common law courts. While the doctrine is a salutary one, and 
founded in the main upon equitable principles, it becomes odious 
when not justly or reasonably applied. Estoppel being a rule of 
evidence, a cause of action cannot be founded upon it Although 
regarded by many as rigorous and inequitable, it has gradually 
grown into favor since Lord Chief Justice Mansfield in 1762, in 
Monteiiori v, Monteiiori,^ impressed it upon our legal system in the 
following forceful words : 

" Where third persons represent anything material, in a light different 
from the truth, . . . they shall be bound to make good the thing, in the 
manner in which they represented it. . . . For no man shall set up his own 
inequity as a defence, any more than as a cause of action." 

Not being a cause of action, the measure of damage in the appli- 
cation of this doctrine is not compensation, but the placing of the 
one relying upon it in the same position as if the representation, 
or assumed state of facts, were true. 

Quite recently an important judgment was delivered in the Su- 
preme Court of Canada, Ewing v. Dominion Bank,® involving a 
principle of equitable estoppel, which has elicited much comment, 
not less among the profession than in commercial circles and bank- 
ing institutions. Its decision settled, as far as the court of last 

1 6 Ad. & E. 474. « I Black. W. 363. » 35 Can. Supreme Ct. 133. 

8 



114 HARVARD LAW REVIEW. 

resort for the Dominion can settle, a question of considerable 
importance respecting forged paper discounted by a bank. The 
judgment cannot be said to be satisfactory for two reasons. First, 
the court was a divided one, three sustaining the judgment of the 
inferior court and two dissenting. In the second place, the amount 
of the judgment assessed for the plaintiff (below), the Dominion 
Bank, was so manifestly inequitable as to suggest the odium, which 
Lord Coke designated as attaching to estoppels generally. A some- 
what detailed account of the facts of the case is necessary in order 
to form a just conception of the decision. 

The plaintiff is a chartered bank having its head ofRce at Toronto. 
The defendants, William Ewing & Co., are a well known firm of seed 
merchants in Montreal. One Wallace, managing clerk of the 
Thomas Phosphate Co., of Toronto, finding the company in sore 
need of money, on August 14, 1900, forged the name of William 
Ewing & Co. to a promissory note for $2,000, at four months, 
made payable to the Thomas Phosphate Co. at the Dominion 
Bank, Toronto. Wallace, on August iSth, procured the forged 
note to be discounted by the said bank, and the proceeds placed 
to the credit of the company in the bank. On the same day the 
assistant manager of the bank sent notice to Ewing & Co. that their 
note for $2,000, in favor of the Thomas Phosphate Co., would 
fall due on December 17, 1900, and they were requested to pro- 
vide for the same at maturity. This notice was received by Ewing 
& Co. on the morning of August i6th. On the 15th, the day of 
discount, Wallace checked out part of the proceeds, so that at the 
close of business, on the 15th of August, the Phosphate Co. had 
at the credit of its account, at the bank, $1,611.65; by the i8th 
Wallace had drawn all but $70. 

Ewing & Co. on receipt of the notice sent them by the bank, 
on the i6th, at once telegraphed to Wallace, whom they had per- 
sonally known, asking what the notice meant. On the same day 
Wallace telegraphed from Boston to Ewing & Co., saying he was 
coming to Montreal and would explain why the bank held the 
note. On the i8th, he telegraphed again to Ewing & Co. to ar- 
range to see him on the 19th. On the last named day Wallace 
reached Montreal, and then made known his forgery of the note, 
and promised to take steps to retire the same at any early day, 
and begged of Ewing & Co. not to let the bank know of the 
forgery. Wallace failed to make good his promises. From that 
time for nearly four months an active correspondence was carried 



NEIV PHASE OF EQUITABLE ESTOPPEL, II5 

on between him and Ewing & Co., Wallace pleading for time to 
raise the money, and beseeching them not to notify the bank, and 
they urging him with threats and entreaties to retire the note as 
agreed. Wallace's efforts to extricate himself proved unavailing. 
On December 4, 1900, the bank again notified Ewing & Co. that 
the note would mature on December 17th, and would be obliged 
if they would kindly provide for the same. On December lOth, 
Ewing & Co. wrote the bank denying they were the makers of the 
note, and on the same day also notified Wallace that they had in- 
formed the bank to the like effect. Wallace left the country about 
the time the note matured. On suit brought by the bank, the de- 
fendants denied the making of the note, and the bank counter 
claimed that if the signature were a forgery they were estopped 
by their conduct from denying it. 

The cause was tried in September, 1902, by Meredith, J., without 
a jury, and judgment passed for the plaintiff for the full amount of 
the note with interest amounting to $2,230, besides costs of ac- 
tion. The judgment did not proceed on the ground of ratification 
of the forged note by the defendants ; but by reason of the defend- 
ants being estopped by their conduct from denying the making, 
the court holding it to be the legal duty of a person whose name 
has been forged to inform the holder of the forged instrument of 
the fact promptly after becoming aware of it; and that such a per- 
son becomes liable upon it if, by reason of neglect of such duty, 
the holder's position is altered for the worse. 

On appeal to the Court of Appeal for Ontario, the judgment was 
unanimously sustained. The Court of Appeal held that the judg- 
ment could not be supported on the ground of ratification; on the 
other hand, it could rest only upon estoppel. Chief Justice Moss, 
after referring to the conduct of the defendants, in their attempt 
to shield Wallace, held that their silence for the benefit of the 
forger resulted in the bank's position being thereby materially al- 
tered to its prejudice, and that consequently the defendants were 
estopped from denying their liabih'ty upon the note. 

In order to form a just conception of the import of this judgment 
it may here be stated that the evidence discloses that, when the 
forged note was presented for discount, the bank knew the Phos- 
phate Co. was practically worthless ; that the bank never had any 
previous dealings with the firm of Ewing & Co., had no knowl- 
edge of their signature, and made no inquiry as to the standing of 
the firm, or as to the genuineness of the signature, but acted entirely 



Il6 HARVARD LAW REVIEW, 

upon the representation of Wallace ; that the note was drawn on a 
Toronto form, notwithstanding the defendants resided in Montreal; 
that the note, apart from the printed portions, was filled up in two 
different handwritings, facts that would reasonably awaken suspi- 
cion ; that the notice was not sent by the bank to Ewing & Co. to 
elicit a response as to the genuineness of the signature; and that 
the fact that they did not receive an answer to the notice in no 
way influenced the bank as to the disposition of the balance of 
the funds in their hands. 

The counsel on behalf of the appellants contended, that they 
were entitled to a reasonable amount of time to make inquiries in 
order to satisfy themselves a forgery had been committed, and no 
duty to speak was cast upon them until assured of its commission; 
that when such knowledge was obtained by the confession of the 
forger on August 19th, the proceeds of the note had been sub- 
stantially withdrawn; and that by the silence of the defendants 
after the 19th the position of the bank had not been materially 
altered for the worse. On behalf of the bank it was contended 
there was evidence to show that prompt notice would have enabled 
the bank, by refusing payment of the forger's checks, to have 
retained a part at least of the proceeds of the note, as well as other 
moneys afterwards withdrawn by the forger, and want of such 
notice prevented the bank from taking civil or criminal action or 
other course against the forger before he absconded. 

The judgment of the Court of Appeal of Ontario was affirmed 
by the Court of Appeal for the Dominion of Canada, two judges 
dissenting.^ Mr. Justice Nesbitt in his dissenting opinion, after 
concluding that in order to create a duty on the part of Ewing & 
Co. to notify the bank that the note was not theirs, the bank 
should have given some reason to Ewing & Co. to suppose that 
it would be prejudiced by their silence, proceeds : 

'^I think, that, in any event, until the interview on Sunday the 19th 
Ewing & Co. were not bound to assume a crime had been committed and 
that their explanation, which was adopted by the Court of Appeal, that, 
although they had not made a note, the slip by mistake or error on the 
part of the clerk in the bank might refer to an advice of a draft intended to 
be drawn upon them, was reasonable, and they were not bound to suppose 
a crime had been committed ; and Wallace's telegram would certainly lead 
them to suppose he had a reasonable explanation and that they were justified 
in waiting until Sunday the 19th, and at that time any telegram or other 

1 See Ewing v. Dominion Bank, supra. 



NEW PHASE OF EQUITABLE ESTOPPEL. W] 

notice at the bank would have been quite ineffective. It was not pre- 
tended that the bank was in any worse position as to arrest by not receiving 
notice until the loth of December. ... It seems to me that even the 
extreme altruistic view referred to by Mr. Ewart in his work on Estoppel, 
page 38, does not justify a court in making a man pay a note which he 
did not sign when the person who discounted the note relied entirely for 
the genuineness of the signature upon the representation of the party dis- 
counting it and did not communicate, in any way intending or relying upon 
such communication, with the party sought to be charged." 

The counter view of the case was briefly expressed in the 
following terms by Mr. Justice Killam: 

"The case appears to me to come directly within the principle upon 
which silence under certain circumstances gives rise to an estoppel. The 
bank directly notified the defendants that their note would fall due at its 
office on a certain date and requested them to provide for the same. This 
distinctly implied that the bank had an interest, either of its own or on 
behalf of some one else, in the payment of the note and in its genuineness. 
While there was no intimation that the bank had acquired or was proposing 
to acquire the note for value, the defendants, as men of business, would 
know that the bank might have discounted the note and have the proceeds 
still at the customer's credit, or that it might make advances upon it. 
They would know that an immediate repudiation would enable the bank to 
withhold payment of any portion of the proceeds not actually paid out or 
of any sums not already advanced. They knew that they had made no 
such note, that they had given no authority for the signature. They could 
at once repudiate it, and they did so in their telegram to Mr. Wallace. No 
further information was necessary for that purpose. While the bank man- 
ager placed the proceeds to the credit of the customer without inquiry, 
and took no precaution against their being paid out before he could hear 
from the defendants, the bank did act upon the defendants' silence in the 
sense that it did what, it should properly be inferred, it would not have 
done if the defendants had at once denied the signature ; it allowed the 
balance of the proceeds to be withdrawn.*' 

Special leave to appeal, from the Supreme Court of Canada, to 
His Majesty in Council was asked and refused. So here ends the 
case. Curia sutnma locuta est ; causa finita est. And who can 
say strict justice has been done? The case seems a particularly 
hard one for the defendants. They were brought, not by their 
own seeking or concurrence, into unpleasant relationship with a 
bank and one of its customers. When the notice referred to 
reached them, on the morning of the i6th of August, the damage 



Il8 HARVARD LAW REVIEW. 

complained of had in part been done. When, on the 19th of 
August, they first learned from the lips of Wallace that their 
signature to the note in question had been forged by him, the 
whole damage had been done. And yet, in consequence of subse- 
quent silence, they were compelled to pay the note in full, and 
thus make full reparation for the entire damage. 

As the damages assessed by the trial judge were neither exem- 
plary nor punitive, as in actions for deceit or misrepresentation, 
the judgment can be defended only on the ground of the appli- 
cation of a rigorous rule of evidence, which excludes a finding of 
the actual loss sustained by the plaintifiF, and places the person 
relying on the estoppel in a better position th:.n that which his 
own initiative materially assisted in generating. In fine, an estoppel 
goes to the extent of preventing an adjustment of the damage 
actually incurred or of ascertaining in how much worse condition 
the plaintiff has been placed by reason of the conduct of the one 
sought to be estopped. Against such technical injustice able 
judges have from time to time entered a vigorous protest; notably 
Lord Justice James, in his judgment in In re Collie.^ The learned 
editors of Smith's Leading Cases hold with much show of reason, 
that it savors of injustice to allow the position of the person re- 
lying on the estoppel to be made better by the act of the estopped, 
simply on the ground he is precluded, by a not very well defined 
rule of evidence, from stating the real truth of the case. It would 
seem strict justice should rather demand, that the plaintiff should 
be relegated simply to the same position he would have occupied, 
had he not acted upon the representation or act complained of. 
It is to be hoped, however, notwithstanding that the more rigorous 
doctrine still prevails, that in the language of the editors referred 
to, in the closing words of their comments on the Duchess of 
Kingston's case — " Possibly the greater flexibility introduced into 
our system by the Judicature Acts may eventually lead to an 
alteration in this respect" 

SUas Alward. 
St. John, N. B. 

1 8 Ch. D. 816 



Harvard Law Review. 



Publithed monthly, during the Actdomic Yotr, by Harvard Law Studantt. 
•UBSORIFTION PRIOK, $2.50 PKR ANNUM 36 CKNTt PER NUMBER. 



EdUarial Board, 



Roger Ernst, PnsuUnL 
Edwin H. Abbot, Jr^ 
Francis W. Bird, 
James N. Clark, 
Robert B. Dresser, 
Mansfield Ferry, 
Felix Frankfurter, 
Archibald R. Graustein, 
Matthew Hale, 
RoscoE T. Holt, 
Waldron M. Jerome, 

John H. 



Wm. Hall Best, Tnasurer, 
Stanley King, 
Monte M. Lemann, 
Philip L. Miller, 
Robert N. Miller, 
Elihu Root, Jr., 
Hugh Satterlee, 
Harry F. Stambaugh, 
William D. Turner, 
Clifford H. Walker, 
Clifford P. Warren, 
Watson, Jr. 



The Law School. — The registration in the School on November 15 for 
the last twelve years is shown in the following table : — 



1894-5 1895-6 1896-7 1897-8 1898-9 1899-1900 



Res. Grad. . . 


— 


— 


— 


1 


I 





Third year . . 


. 82 


96 


93 


130 


102 


134 


Second year 


^Zl 


138 


179 


157 


169 


»93 


First year . . 


172 


224 


169 


216 


218 


232 


Specials . . . 


• 13 


9 


31 


41 


58 


SI 



402 



467 



472 



545 



548 



610 



Res. Grad. 
Third year 
Second year 
First year . 
Specials 



1900-01 1901-02 1902-03 1903-04 1904-05 1905-06 



I 

144 

202 

241 

58 



646 



I 

149 
190 
229 
59 
628 



167 

196 

228 

49 



640 



4 
180 
201 

293 
60 



738 



I 

182 
232 
28s 

S8 



758 



192 

2X6 

243 

64 



716 



The following tables show the sources from which the twelve successive 
classes have been drawn, both as to previous college training and as to geo- 
graphical districts : — 



I20 HARVARD LAW REVIEW. 

Harvard Graduatk.s. 





From 


New Ensland outside Outride of New 




Qaasof 


Massachusetts. of Massachusetts. 


EngUnd. 


Total. 


1897 


27 




2 




15 


44 


1898 


42 




I 




25 


68 


1899 


45 




6 




19 


70 


1900 


SO 




II 




30 


91 


1901 


45 




3 




28 


76 


1902 


59 




2 




28 


89 


'903 


4j 




4 




28 


75 


1904 


47 




5 




17 


69 


1905 


44 




4 




20 


68 


1906 


52 




7 




32 


9« 


1907 


44 




6 




40 


90 


1908 


39 




5 




27 


71 




Graouatks op other Collegss. 








From 


New Enaland outside OuUide of New 




Class of 




England. 


TotaL 


1897 


9 




12 




56 


77 


1898 


19 




23 




62 


104 


1899 


21 




12 




45 


78 


1900 


30 




19 




60 


109 


1901 


27 




22 




59 


108 


1902 


22 




29 




61 


112 


1903 


23 




26 




83 


132 


1904 


25 




29 




74 


128 


1905 


23 




27 




78 


128 


1906 


30 




45 




92 


167 


1907 


32 




33 




89 


154 


1908 


19 




33 




96 


148 






Holding 


NO Dbgrbx. 










New England 




Outside 








From Mas- 


outside of 




of New 




Total of 


Class of 


sachusetts. 


Massachusetts 




England. 


Total. 


Class. 


1897 


26 


7 




16 


49 


170 


1898 


25 


2 




25 


52 


224 


1899 


II 


2 




8 


21 


169 


1900 


II 


2 




3 


16 


216 


1901 


25 


— 




9 


34 


218 


1902 


18 


4 




9 


31 


232 


1903 


21 


I 




12 


34 


241 


1904 


22 


— 




10 


32 


229 


1905 


12 


2 




18 


32 


228 


1906 


25 


I 




9 


35 


293 


1907 


18 


5 




18 


41 


285 


1908 


14 


I 




9 


24 


243 



As the twenty-four Harvard seniors in the first year class have in each 
instance completed the work required for the Harvard A. B. degree, all 
members of the class are virtually college graduates. The same is true of 
practically the entire School. Of the sixty-four special students, fifteen have 
entered this year, and of these ten are graduates of a college or university, 
six having received a degree in law. 

One hundred and eighteen colleges and universities have representatives 
now in the School as compared with one hundred and fourteen last year and 



NOTES, 121 

one hundred and eleven the previous year. In the first year class sixty-five 
colleges and universities, as compared with sixty-nine last year, are repre- 
sented, as follows: Harvard, 71; Yale, 20; Brown, 11; Dartmouth, 11; 
Princeton, 10 ; Bowdoin, 8 ; Williams, 6 ; Georgetown, 5 ; Clark, Hamilton, 
Wesleyan (Ct), 4 ; California, Carleton, Cornell University, Iowa College, 3 ; 
Amherst, Central, Kansas, Stanford, Ohio State, Wisconsin, 2 ; Allegheny, 
Austin, Boston College, Boston University, Chicago, Coe, Colby, Columbia, 
Denison, De Pauw, Doane, Fisk, Franklin, Gustavus Adolphus, Hobart, 
Holy Cross, Illinois College, Illinois University, Indiana, Iowa University, 
Knox, Lombard, Maine, Miami, Middlebury, Minnesota, Missouri, Montana, 
Mt. Allison, Nebraska, Nevada, New Brunswick, North Carolina, North- 
western, Ohio, St. Louis, St. Vincents, South, South Carolina, Swarthmore, 
Virginia, Washington and Jefferson, Western Reserve, Wheaton, i. There 
are at present in the School eleven law school graduates, five of whom 
hold academic degrees also, representing the following law schools : Boston 
University, Columbia, Dickinson, Harvard, Iowa University, Maryland, 
Oxford, Pennsylvania, St. Louis, Stanford. 



Inheritance Taxes on Subsequently Vesting Contingent Remain- 
ders. — Like so many other broad concepts of Constitutional Law, that 
of vested rights is hardly reducible even to a working definition. The dis- 
tinction is generally drawn between "vested " rights and mere "expectan- 
cies/* which the legislature may freely impair.^ Thus, various property 
rights incident to the marriage status are at the legislative mercy. Dower, 
being inalienable before assignment, may before assignment be diminished 
or destroyed.* On the other hand, the extent of legislative control over 
curtesy is in dispute. Yet since curtesy initiate is a present interest, alien- 
able and subject to debts, though the enjoyment is postponed, the better 
doctrine regards it as a vested right' There is a similar diversity of opinion 
as to the power of the legislature to deprive tlie husband of his common law 
right to reduce his wife's choses in action to possession.* Again, the old 
right of survivorship in joint tenancies may concededly be destroyed by 
turning them into tenancies in common.' But the most widely recognized 
field of legislative control is found in the laws governing descent and dis- 
tribution.' Inheritance is a privilege, not a right. Heirs presumptive and 
testamentary beneficiaries have only a present, destructible opportunity of 
taking under existing expressions of governmental policy as to the dis- 
position of a deceased's property. 

This line of reasoning sustains our numerous inheritance taxes.'' The 
state exacts a bounty on the passing of property by will or intestacy. It 
is a tax on the privilege of transmission, — not a tax on its receipt, or on 
property because of ownership. That is the source of the revenue, though 
the appraisal of interests then created may be postponed because of the 
difficulty of assessing until contingencies in the way of its possible enjoy- 

1 Cooley, Const. Lim., 7th ed., co8 ft seq. 

« Randall v. Kreiger, 23 Wall. (U. S.) 137. But see Dunn v, Sargent, loi Mass. 336 

» See McNeer v, McNeer, 142 III. 388. 

* See note to Westervelt v. Gregg, 12 N. Y. 202, in 62 Am. Dec. i6a 

* Holbrook v, Finney, 4 Mass. 56c. 

* See Marshall v. King, 24 Miss. 85. 

» Matter of Swift, 137 N. Y. 77, 88 ; Knowlton v, Moore, 178 U. S. 41, 47. 



122 HARVARD LAW REVIEW. 

ment are removed.^ And yet the Supreme Court has sustained an assess- 
ment, under the New York statute, upon an estate appointed under a 
power granted before the existence of the tax but exercised, by will, 
thereafter.^ But this is no exception to the above doctrine, for the interest 
is regarded as created as of the time of the exercise of the power, and 
the state is there again levying on a testamentary disposition* But the 
New York Court of Appeals decided that a vested remainder is not subject 
to a subsequently enacted inheritance tax law.^® The same court now 
accords similar protection to a contingent remainder. Matter of Lansings 
182 N. Y. 238. In other words, from the constitutional, as distinguished 
from the conveyancing point of view, it regards a contingent remainder 
as a vested right. While there are important technical differences between 
vested and contingent remainders in the law of Property, there is little 
difference in substance. Whether a remainder is vested or contingent 
is largely a matter of phraseology, and that can hardly control the imme- 
diate question. Alienability seems to be, perhaps, the common element of 
interests that are protected as vested. At common law contingent remain- 
ders were inalienable and could be destroyed by tortious feoffments. But 
the differences in the property incidents of the two classes of remainders 
have now been almost universdly nullified by statute. In most jurisdictions 
contingent remainders are now alienable and indestructible except by the 
cotitingencies on which their fate depends.^^ The owner of a contingent 
remainder has, therefore, a vested right to have the estate when the con- 
tingency happens, and that right the legislature should not be permitted to 
impair by levying a transfer tax for a privilege which has previously ripened 
into a right It is conceived, however, that when the remainder is limited 
to a living man's " heirs," the state may, prior to its vesting, tax the receipt 
of such property. For to allow a man to become the heir of any person is 
a privilege which the state may withdraw or alter, and may therefore charge 
for permitting to continue. 



Law Governing Power op Appointment by Will. — In considering 
what law determines the sufficiency of a will as an exercise of a testamen* 
tary power of appointment over personalty, two questions are involved: 
First, is the instrument, alleged to exercise the power, such a " will " as 
satisfies the direction of the donor of the power, that the power shall be 
exercised " by will " ? Second, if it is a valid will, does it amount to an 
exercise of the power? Both of these questions may come up for decision 
in cases where the donee of a testamentary power of appointment dies 
domiciled in a different country from the donor, leaving a will which is 
alleged to exercise the power. In such cases the execution of the power 
is commonly to be found, if at all, in a universal legacy contained in the 
will, no direct reference to the power or the property subject thereto oeing 
made by the testator. 

In both England and the United States the instrument in question is 
held to be a sufficient ^ will " if made in accordance with the law of the 

< Matter of Seaman, 147 N. Y. 69. 

* Orr V, GUman, 183 U. S. 278. See also Carpenter v. Commonwealth, 17 How. 
(U.S.) 456 ; Gelsthorpe v. Farnell, 20 Mont 299, 31a 
w Matter of Pell, 171 N. Y. 48. 
" 21 L. Quar. Rev. 118, 119, note. 



NOTES, 123 

domicile of the donee at his death.^ This seems a necessary application 
of the broad doctrine that a will of movables which is valid by the law of 
the testator's domicile at his death is valid in other countries.' In England, 
by a further extension which is established by authority but questioned as 
to principle, the power may also be exercised by a wiU conforming to the 
law of the donor's domicile.' A will not conforming to the law of the 
donee's domicile, but admitted to probate by statute,^ is held in England 
incapable of exercising the power unless executed according to English 
law.* 

Whether a given will constitutes an exercise of the power is determined 
in the United States by the law of the domicile of the donor.* This rule 
rests on the theory that the donee is merely the agency through which 
the donor designates the beneficiary, who takes under the instrument 
creating the power and not under that by which the power was exercised.^ 
In an English case, however, the law of the donee's domicile is taken 
to govern.* The decision in this case is not so strong as the American 
decisions, for the instrument in question was not a good execution of the 
power by the law of the donor's domicile, and to the law of the donee's 
domicile powers of appointment were unknown. The case has been fol- 
lowed in a recent English decision which adopts its conclusion on similar 
fisicts, but leaves in confusion the question whether the law of the donee's 
or that of the donors domicile governs. In re SchoUfidd^ 21 T. L. R. 

675- 

The view taken by the English court, that the question whether the will 
constituted an execution of the power is to be determined by the law of the 
donee's domicile, seems sound. Even if the donee is a mere agent of the 
donor, he has an option of exercising the power, and his intention in this 
respect is not subject to the donor's control. The question being whether 
the power was exercised or not, the intention of the donee would seem the 
test. His intention, however, may not appear in the will. Indeed, in the 
common case, the will makes no reference to the power or to the property 
over which the power is held, but the only language from which an exe- 
cution of the power may be found is that of a universal legacy. Where the 
intention does not clearly appear, but has to be found by implication from 
the language of the will, the law which decides whether it will thus be 
found should be the law with regard to which the will was written. That 
law is presumably' the law of the domicile of the donee.^* 



DuPUCATES AS Primary Evidence. — Any one of duplicate instruments 
may be introduced in evidence without accounting for any other.^ In this 

> D'Hoart v. Harkness, 34 Beav. 324 ; see Ward v. SUnard, 82 N. Y. App. Div. 386. 

s Dicey, Conflict of Laws 684. 

* In the Goods of Huber, [1896] P. 209; In the Goods of Hallyburton, L. R. 1 P. 



&D 

1 2C Vict. c. 114,1 
* Hummel v, fiummel, [1098] i Ch. 642 ; see also In re Kirwan's Trusts, 25 Ch 



D. oa 
« St. 24 



D.37J. 

* Sewall V. Wilmer, 132 Mass. 131 ; Bingham's Appeal, 64 Pa. St 345. 
T Cotttng V. De Sartigcs, 17 R. I. 668, 671. 

* In re D'Este's Settlement Trusts, [1903] I Ch. 898. 
^ Cflnre Price, [1900! i Ch. 442. 

>» Wharton. Conffict of Laws, 3d ed., 1315. 

* 2 Wigmore, Ev. § 1232. 



124 HARVARD LAW REVIEW. 

connection, however, the term duplicate signifies more than a mere copy : * 
the instruments must be identical not only verbally but also in legal import.* 
Early examples of duplicate originals were the counterparts of deeds. ^ 
These became originals, not because of any coincidence of writing, but 
because they were delivered together. Each instrument thereby became 
operative as a deed, because that was the intention of the parties.* So, too, 
if the parties to a bilateral contract draw up the written contract in duplicate, 
each taking a copy, either party may produce his copy without accounting 
for the absence of the original, even though his own signature be lacking 
from the instrument.* In such cases it is obvious that nothing depends on 
the manner in which the instruments were written or printed. 

In the case of most written or printed matter, however, intention affords no 
test. A man who writes to accept an offer one day cannot on the next day 
make a copy of his acceptance which shall be available in evidence as a dupli- 
cate original merely by " intending " that the copy shall operate as such. The 
question will now depend on the nature of the process by which the alleged 
duplicate has been produced. And here the line seems to be drawn between 
duplicates in the strict sense and copies. Thus, letterpress reproductions 
are not admissible, because really not duplicates, but copies of an original^ 
Printed "copies," on the other hand, are true duplicates, being all produced 
from the same types, and so are admissible.* In accordance with this dis- 
tinction the Virginia court has recently declared that carbon '' copies " of a 
letter, made by the same impression as the letter, are admissible as duplicate 
originals. Chesapeake 6* Ohio Ry, Co. v. Stock 6* Sons^ 51 S. E. Rep. 
161. This opinion (which, however, was not necessary to the decision in 
the case) seems correct. A carbon " copy " is as much an original as to 
printing as the letter itself, since the production of both is practically in- 
stantaneous. The present case, therefore, may properly be classed with 
the printing-press cases. Nor is the objection sound that, as no signature 
is ordinarily made on the carbon copy, such copy cannot be of the same 
legal import as the document which is signed. In the class of cases under 
discussion the contents of the document, not the signature, are in legal issue. 
A more serious difficulty is the danger that false evidence will be manufactured. 
If the other party, however, holds the original letter sent to him, the fraud may 
easily be shown ; and if he does not hold it, the copy would be admissible 
as secondary evidence. At all events, the risk of fraud is probably counter- 
balanced by practical advantages. It has become important to business 
men to have some record of their business correspondence which can readily 
be produced without the inconvenience of accounting for the originals. To 
treat carbon copies as originals seems, therefore, sound and progressive as 
well as technically correct. 

But is the test that both instruments must be made by the same me- 
chanical process satisfactory? If letterpress copies are uniformly accurate, 
the distinction between them and carbon copies, made in the regular course 
of business, seems merely technical The real test, then, of whether instni- 



s Toms V, Cuming, 7 M. & G. 88. 
■ Nelson v. Blakey,'54 Ind. 2a 

* Lewis V. Payn, 8 Cow. (N. V.) 71. 

* Leonard v. Young. 4 All. (N. B.) 11 1 

• Cleveland & ToMo R. R. Co. v, Perkins, 17 Mich. 296. 
' Nodin V. Murray, 3 Camp. N. P. 228. 

• Rex V. Watson, 2 Stark. N. P. 116. 



NOTES. 125 

incuts arc duplicates would seem to be whether there is substantial certainty 
of identity among them. If so, they should be allowed to be introduced 
as primary evidence. 



Agreements in Restraint of Trade by Copyright-Holders and 
Patentees. — " To promote the progress of science and useful arts," 
Congress, under powers conferred by the Constitution,^ has secured to 
authors and inventors by means of copyrights and patents the exclusive 
right to produce and "to vend" their writings and discoveries.*^ This 
statutory right of monopoly seems naturally to carry with it the right to 
employ ordinary and reasonable means of enforcing the monopoly. Thus, 
a copyright-holder or patentee is allowed to make such contracts with the 
vendee of the protected article as he wishes. Stipulations, for instance, 
that the vendee shall sell only for a fixed price or under certain condi- 
tions have been held valid, and the breach of them enjoined.' Yet be- 
yond the strict scope of this statutory exemption it seems clear that the 
holders of copyrights and patents should be bound by the same common 
law and statutory restrictions upon contracts and combinations in restraint 
of trade as are the owners of other property. The test is whether or not 
the acts in question tend toward the establishment of a new monopoly. 
Obviously, it would seem that a new monopoly is being attempted when the 
holders of separate copyrights or patents on articles of the same general 
class combine for the purpose of controlling the market in the general class 
of commodities, the particular varieties of which are the subjects of the 
separate copyrights or patents. The Court of Appeals of New York has, 
nevertheless, intimated an opinion that a combination among publishers of 
copyrighted books to boycott all jobbers and booksellers who should not 
maintain the net prices of copyrighted books fixed by the individual 
members of the combination, is not illegal as being in restraint of trade.^ 
More recently, however, a federal court strongly maintained the contrary 
view. Bohhs-Merriil Co* v. Straus, 139 Fed. Rep. 155. (Circ. Ct., S. D. 
N.Y.) 

The position taken by the federal court seems eminendy sound. The 
copyright and patent laws confer a monopoly as respects the property 
covered by them ; but it seems unreasonable to construe them as conferring 
on the owners of several distinct copyrights or patents a right to combine 
to restrain competition and trade.* Such combinations are, from the public 
standpoint, especially undesirable. In general, it is only the competition 
between different copyrighted and patented commodities substantially sub- 
serving the same general want that has made copyright and patent laws 
tolerable. The monopoly price of the protected articles is kept down by 
this sort of imperfect competition ; this competition withdrawn, the prices 
would rise from those at which people would do without that particular com- 
modity to those at which they would do without that class of commodities. 

The question as to the illegality of such combinations or agreements 
must, however, be carefully distinguished from the question as to the effects 

^ U. S. Const. Art i, § 8, daiue 8. 

* 26 U. S. SUts. at L. 1 106; 16 ibid, aoi. 

* Gawt V. Harris, 177 Mass. 72 ; Fowle v. Park, 131 U. S. 88. 

^ Straas tt al. v. Am. Pub. Assn., 177 N. Y. 473. Cf. Park & Sons Co. v. Nat., etc., 
Assn., 175 N. Y. I. 

* National Harrow Co. v. Hench, ^2 P^* I^^P- Z^* 3^- 



126 HARVARD LAW REVIEIV. 

of the illegality. The illegality of a combination or agreement of copy- 
right-holders and patentees taints the transactions of the combination and 
its members just so far and only so far as it would, were the property in- 
volved not the subject of patents and copyrights.* Thus a contract licens- 
ing the sale of a patented article, made in direct pursuance of the unlawful 
objects of an illegal combination is held unenforceable.^ On the other 
hand, in a suit brought by the owner for the infringement of a copyright 
or patent, it is no defence that the plaintiff is an illegal combination or a 
member of it.* 



Estoppel against State and Unfted States. — At common law and 
in some of our states, estoppel could not be set up against the sovereign.^ 
It is now clear, however, that estoppel by record applies to the state or fed- 
eral government. Thus, when a state recovered judgment for taxes due 
during certain years, it was estopped in another action to recover an alleged 
balance for the same years.* By the weight of authority, also, estoppel by 
deed may be set up against the government. Thus, where a state^ for 
valuable consideration, granted land to an alien, his heirs and assigns, with 
warranty, it was estopped to set up the alienage of the grantee or of his heirs as 
ground of an escheat.* Estoppel in pais, or equitable estoppel, against the 
government, however, has not in general met with favor among the states.* 
In support of the prevailing view, courts find an analogy in the rules ex- 
empting the state from the operation of the statute of limitations and from 
the doctrine of laches. But the government is here exempt not from any 
notion of extraordinary prerogative, but for reasons of public policy. Since 
the fiscal transactions of the government are so numerous and its agents so 
scattered, it is apprehended that the utmost diligence on the' part of the 
government might not save the people from loss through outlawed claims. 
Estoppel in pais, however, rests on principles of universal justice. "When 
matter of estoppel arises, the observance of honest dealing may become of 
higher importance than the preservation of the public domain." * When the 
government engages in commercial transactions, it is subject to the same 
laws that govern individuals. Thus, when it becomes a party to negotiable 
paper, it has the rights and assumes the liabilities of individuals in a similar 
position, except that it cannot be sued.* There seems, therefore, no good 
reason why the government should not be estopped, like an individual.'' 

* I PsLge, Contracts 698. See Strait v. National Harrow Ca, 51 Fed. Rep. 819, 820. 

T National Harrow Co. v, Hench, 76 Fed. Rep. 667 ; affirmed in 83 Fed. Rep. t6. 
C/. Gamewell, etc., Co. v. Crane, 160 Mass. 50; Vulcan Powder Co. v. Hercules 
Powder Co., 96 Cal. 510. 



^ Edison, etc., Co. v. Sawyer-Iman, etc., Co., (3 Fed. Rep. 592; American, etc., Co. 
V. Green, 6q Fed. Rep. 333; General Electric Co. v. Wise, 119 Fed. Rep. 923. But 
see contra. National Harrow Co. v. Quick, 67 Fed. Rep. 130. 



^ See Queen v. Delme, 10 Mod. 199, 200 ; Taylor v. Shufford, 4 Hawks (N. C.) 116, 
132 ; State v. Williams, 94 N. C. 891, 895. 

s Bridge Co. v. Douglass, 12 Bush (Ky.) 673, 716. See also Fendall v. United 
States, 14 Ct. of CI. 247. 

* Commonwealth v, Andr^, 3 Pick. (Mass.) 224. 

* Sec People v. Brown, 67 III. 435. 

* United States v. Willamette Val. & C. M. Wagon-Road Co., 54 Fed. Rep. 807, 811. 

* United States v. Bank of Metropolis, 15 Pet. (U. S.) 377, 392; United States v. 
Barker, 12 Wheat. (U. S.) 55a 

^ Sec United States r. Stinson, 125 Fed. Rep. 907 ; State r. Flint & P. M. R. R., 
89 Mich. 481 i Sute v. Milk, u Fed. Rep. .189. 



NOTES. 127 

Enactments or resolutions of the legislative body clearly estop the govern- 
ment. Where the legislature, by public resolve, declared a certain monu- 
ment to be the one referred to in an ancient Indian deed, the state was 
estopped from showing afterwards that it was not the monument referred 
to.* The acts of its agents, when fraudulent or * unauthorized, do not 
estop the government, even when the agents act within the apparent scope 
of their authority ; but this rule may be rested on the presumption of law 
that those who deal with public officers know the extent of their authority.* 
On the other hand, acts of agents as well as of the legislature, ought 
to estop the government, if the agents are authorized to shape its conduct 
in a particular transaction and have acted within the purview of their 
authority. Where, for instance, under a mistake of fact a public officer 
overpaid a corporation for its services in carrying the mail, the govern- 
ment was estopped to recover this money from a second corporation which 
had become the owner of the first, relying on the settlements made with 
the first by the agent of the government.**^ Even those courts, however, 
which accept the general principle that the state may be estopped in pais 
by acts of its agents seem still to be feeling their way, and apply the prin- 
ciple with extreme caution. A recent federal decision furnishes a good 
illustration of this attitude. Walker v. United States^ 139 Fed. Rep. 409 
(Circ. Ct., M. 13. Ala.). The facts of the case were strong, and the 
estoppel was allowed, but the court circumspectly declined to commit 
itself to a more concrete declaration than that the rule would be applied 
" in a proper case." What is a proper case no court seems yet to have 
attempted to define. 



Legislative Authorization of Nuisances. — Varying expressions of 
opinion are found in the books as to how far a legislature can authorize 
what would otherwise be a private nuisance, without providing for the con- 
stitutional compensation for the '' taking " of private property. The cases 
seem to confine this form of protection rather strictly to instances of an 
actual seizure of physical property.* When, for example, a chartered rail- 
road encroaches upon none of his land, a person whose real estate deterio- 
rates in value by reason of the smoke, noise, and other concomitants of the 
proper operation of the road has no redress.^ But if part of the plaintiffs 
land is occupied, compensation is often made not only for that portion and 
for the diminution in value of the remainder caused by the alteration in 
shape and size, but for the further depreciation resulting firom the inevitable 
smoke, noise, cinders, and jarring created in the operation of the railroad on 
the portion condemned.' Thus, under the guise of compelling payment for 
land taken, are exacted damages for what is practically a nuisance to be 
maintained on that land. This eminently equitable result could, however, 
be reached without artifice simply by placing a less strict construction 

* Commonwealth v, Pejepscut, 10 Mass. 155. 

• Dement v, Rokker, 126 III. 174, 199; Filor v. United States, 9 Wall. (U. S.) 45. 
10 Duval V. United States, 25 Ct. of CI. 46. See also Hartson v. United SUtes, 21 

Ct. of CI. 451 ; People v. Stephens, 71 N. Y. 527, 561. 

1 See Garrett v. Lake Roland El. Ry. Co., 79 Md. 277. 

« Beseman v, Pennsylvania R. R. Co., 50 N. J. Law 235; Carroll v. Wisconsin 
Cent. Co., 40 Minn. 168. 

' Bangor, etc., R. R. Co. v. McComb, 60 Me. 290. See Walker v. Old Colony, etc., 
Ry. Co., 103 Mass. 10. 



128 HARVARD LAW REVIE^V. 

upon the constitutional phrase " taking of property." Property, in the con- 
stitutional sense, say many respectable authorities, consists not in the plot of 
land, but in the right to use it undisturbed.^ Hence several decisions have 
called that a taking which without an entry by the trespasser virtually made 
the enjoyment by the ostensible owner impossible, as by a flood of water 
or of sand.^ Others more broadly hold that an easement is property, the 
taking of which must be paid for.' The idea of property on which these 
cases proceed would lead to the conclusion that any material abridgment of 
rightful user is the taking of property.^ On this theory, therefore, recovery 
might be had for all nuisances, however the legislature had attempted to 
sanction them, so far as they interfered with the comfortable enjoyment of 
an individual's land or chattel. This would make possible the collection of 
damages from a railroad company by very many whose land is situated near 
its line. Such incidental injuries, however, are said by the courts to be 
of that class which must be suffered for the common welfare, and which 
are too slight substantially to impair the rights of property recognized and 
protected by the state. That this position is logically inconsistent with 
any but a strict interpretation of constitutional phraseology has already been 
indicated, and that it is not even unequivocally desirable on grounds of 
public welfare is shown by the more modem constitutions and statutes, 
which provide for compensation when property is taken or damaged. Even 
these, however, under the narrow definition of property, leave many injured 
parties without a remedy." 

But whether or not the constitution is construed to assure compensation 
for an authorized nuisance the extent of the authorization is closely scru- 
tinized. It may be because of such want of authorization that in a recent 
Texas case a householder was allowed to recover for mere personal incon- 
venience and annoyance arising from the operation of a freight depot near 
her premises. St. Louis^ etc,^ Ry, Co. v. Shaw, 88 S. W. Rep. 817 (Tex., 
Civ. App.). A line of track authorized by legislative enactment necessarily 
entails certain inconveniences to a large share of the public, but freight 
yards, water-tanks, and round-houses are structures which may and therefore 
are intended to be located where they will be of the least possible harm to 
the community. For any nuisance due to their improper location the rail- 
road is unquestionably liable.* 



Constructive Trusts Arising on Bequests on Secret Understand- 
ings. — It has recently been held in New York, that where a will recited 
that a bequest was to be used as the testator had ordered in his lifetime, 

^ I^wis, Eminent Domain, §§ 54, 55. See Eaton v. Boston, etc., R. R., 51 N. H. 504, 
51 1 ; Shaw, C. J. in Old Colony, etc., Ky. Co. v. County of Plymouth, 14 Gray (Mass.) 
155, 161. 

* Pumpelly v. Green Bay Co., 13 Wall. (U. S.) 166; Eaton v. Boston, etc, R. R., 
supra. 

^ See Lamm v. Chicago, etc.. Rd. Co., 45 Minn. 71. 

^ Lewis, Eminent Domain, § 56; Cooley, Const. Lim., 7th cd., 787, 788; City of 
St. Louis V. Hill, 116 Mo. 527; Forster v. Scott, 136 N. Y. 577 ; City of Janesville 
V, Carpenter, 77 Wis. 288, 301 ; Pennsylvania R. R. Co. v. Angel, 41 N. J. Eq. 316^ 

329- 

" Sec Aldrich v. Metropolitan, etc., El. Ry. Co., 195 III. 456. 

» Baltimore, etc., R. R. Co. v. Fifth Baptist Church, 108 U. S. 317; Pennsylvania 
K. R. Co. V. Angel, supra; Missouri, etc., Ry. Co. of Texas v. Anderson, 81 'S. W. 
7.S1 (Tex., Civ. App.). 



RECENT CASES, 129 

and the context made it clear that the legatee was not to lake benefi- 
cially, the bequest failed. In re Keetian^ 94 N. Y. Supp. 1099. 

In withholding the beneficial interest in the legacy from the legatee the 
decision is undeniably correct' Common justice, at least, would forbid 
that he should hold beneficially, in the face of the express provision to the 
contrary in the will, and his own acquiescence in the oral instructions which 
lay back of the legacy. A trust, then, will be impressed upon the property 
in his hands, and the only open question is who should be the cestui. As 
to this question there are two well-known theories. One is, that the testator, 
having in himself the legal and equitable interests in the property, has given 
only the legal interest to the trustee ; that the oral instructions are inop- 
erative, because, without being duly executed in the testamentary form, 
they purport to dispose of the testator's beneficial interest upon his death ; 
wherefore there is intestacy as to the beneficial interest, which accordingly 
passes to the next of kin.' 

The unsoundness of this doctrine arises from the fact that the testator 
could not have had, in himself, both the legal and equitable interests as 
distinct things. For, as an equitable interest is merely a right in personam 
against a trustee, and the deceased could not have had a right of action 
against himself, he therefore could not have been intestate as to any such 
right The full and absolute ownership of the property has, therefore, 
passed to the legatee. The legatee, however, by his express or tacit assent 
to the oral instructions of the testator has made a contract which the courts 
of equity specifically perform by enforcing the trust relation when the legacy 
vests. The oral instructions cannot be objected to under the Statute of 
Frauds, as the trust which they declare is one of personalty ; nor under the 
Statute of Wills, since they effect the passage of no property from the tes- 
tator. They tend simply to prove a personal obligation from a legatee to 
the orally designated cesiuis que trust} This theory of a contract on the 
part of the legatee is applicable to any case where the wishes of the testator 
are communicated to the legatee before he takes, not only when the bequest 
is on its face qualified but when it is absolute in form.^ Even on this point, 
however, there is some dissent* 



RECENT CASES. 

Admiralty — Torts — Division of Damages between Two Tort- 
feasors. — The plaintiff's ship collided with the ship " Caravellas," and the 
next day with the ship " Haversham Grange." Each inflicted damage upon the 
plaintifirs ship which made docking necessary, and in the dock both injuries 
were repaired simultaneously, those caused by the " Haversham Grange " oeing^ 
finished in six, those inflicted by the " Caravellas " in twenty-two days. The 
plaintiff sued the " Haversham Grange " for three days* dock dues and three 
days' demurrage. Held^ that the plaintiff may recover the dock dues, but not 

» Taylor v, Plaine, 31 Md. 158. 

« See Lewin, Trusts, nth ecf., p. 58 ; Olliflfe ». Wells, 130 Mass. 221 ; Heidenheimer 
V. Bauman, 84 Tex. 174. 

• See 5 Harv. L. Rrv. 389; Curdy v. Rerton, 79Cal. 420; Cagney v. O'Hrian, 83 
111. 72. 

« Reech v, Kennegal, i Ves. 123. * See Campl^ell v. Hrown, 129 Mass. 23. 

9 



I30 HARVARD LAW REVIEW. 

demurrage. The Haversham Grange^ 21 T. L. R. 628 (£ng., C. A., June 28, 
1905). 

The question is in what proportion the damages shall be divided between 
two tortfeasors. It is an English rule of admiralty that if two parties are each 
obliged to dock a vessel for repairs which are executed simultaneously, the cost 
of docking must be divided between both parties for the period during which 
both are at work on the vessel. Marine Ins. Co. v. China Transpacific S. S. 
Co., 1 1 App. Cas. 573. Evidently the case at hand falls, as to dockage, directly 
under this special rule. But no case lays down a similar rule as to demurrage, 
which question must be settled by the strict logic of legal causation. Where 
the inevitable consequence of A's tort is a delay of twenty-two days, and B's tort, 
which occurs subsequently, would have caused a delay of six days, but in fact 
does not increase the delay alreadv caused, it can scarcely be said that B*s tort 
is a proximate cause of any of the delay, so as to renaer B liable therefor. 
Cf. Kuhn V. Delaware, etc.^ R. R. Co., 99 Hun (N. Y.) 74. Both the upper 
and the lower court took this view, although it seems hard to reconcile logically 
with the rule as to dock dues. 

Banks and Banking — Deposits — Election of Remedies for Pay- 
ment OF Revoked Check. — A bank paid a check to the payee after payment 
had been forbidden bv the drawer. In an action by the drawer against the 
bank, evidence showed a former action by the same plaintifiE against the payee 
for the amount of the check. He/d, that the bank is liable, since the former 
action was not a ratification of the payment. Pease &■* Dwyer Co. v. State 
National Banky 88 S. W. Rep. 172 (Tenn.). 

Under the Negotiable Instruments Law adopted in Tennessee revocation of a 
check before payment destroys any right of the payee in the fund and thus ren- 
ders the bank liable for subsequent payment, as though no order had been drawn. 
Although a bailor mieht sue both the bailee for breach of the bailment and the 
receiver of the chattel in trover, the absence of a specific chattel renders this 
case distinguishable. See Riley v. Albany Savings Bank, 36 Hun (N. Y.) 
513, 522 ; affirmed in 103 N. Y. 669. The bank's payment may be regarded as 
the act of a volunteer ratified by suit based upon it. Cf. Simpson v. Eggington^ 
10 Exch. Rep. 845. It has even been said that suing the payee is adoption of 
the payee as the maker's agent for receiving payment, and hence a defense to the 
bank. Riley v. Albany Savings Bank, supra. But the better reason seems to 
be that, by electing to pursue one of several inconsistent remedies, the plaintifiE 
foregoes the others. Fowler v. Bowery Savings Bank, I13 N. Y. 450. Any 
action by the depositor against the payee is premised upon the bank's non- 
liability and necessarily is inconsistent with a claim a&^ainst the bank. But on 
whatever theory, it seems the former suit should be a bar. 

Carriers — Who are Passengers — Gratuitous Carriage of Em- 
ployee. — A section hand was injured throueh the derailment of the work 
train in which he was riding home from work. Tield, that he is still an employee, 
and not a passenger. Southern Indiana Ry. Co. v. Afessick, 74 N. E. Rep. 
1097 (Ind., App. Ct). 

whether a railway employee occupies the position of a passenger depends on 
the facts of each case. It is evident that an employee who is on a train in the 
course of his employment is not a passenger. Travelers^ Insurance Co. v. 
Austin, 116 Ga. 264. It is equally evident that an employee who is traveling 
on business in no way connected with the railroad is for tne time being a pas- 
senger. Doyle V. Fitchburg R. R. Co., 162 Mass. 66. But the present case is 
one of the confusing midcue class in which injuries are receivwi riding to or 
from work. A simple distinction that will be found to reconcile most of the 
decisions is that the employee should not be regarded as a passenger when he 
is using a privilege granted specially to employees as such. Judged by this test, 
the present decision is sound, for the work train was provided only for employees. 
On the other hand, a street railway employee riding home on a regular car like 
any passenger who has a pass is to be considered a passenger. Peterson v. 
Seattle Traction Co., 23 Wash. 615. For a further discuf^sion of the question 
presented, see 1 1 Harv. L. Rev. 340 ; 14 ibid. 620 ; 17 ibid. 423. 



RECENT CASES. 131 

Carriers — Who are Passengers — When Relation Begins. — The 
plaintifiE, desiring to become a passenger of a car, signaled to the motortnan, who 
checked its speed. The plaintiff then attempted to board the car while it was 
still in motion. Held^ that he is a passenger while in the act of boarding the 
car. Lewis v. Houston Electric Co., 88 S. W. Rep. 489 (Tex., Civ. App.). 

It is well established that carriers owe the highest care to passengers. It 
often becomes important, therefore, to determine just when the relation of carrier 
and passenger begins. The theory is that there must be an offer and an accept- 
ance to a consensual relation, not to a contractual relation, as courts sometimes 
loosely state, for it is well settled that a carrier owes a public duty independently 
of contract See McNeills, Railroad Co,, 135 N. C. 682. Some courts regard 
the carrier as the offerer and hold that the acceptance is not made until the 
offeree has actually boarded the car. Donovan v. Hartford Street Ry, Co.,6$ 
Conn. 201. The better opinion supported by the weight of authority, however, 
considers the signal to the motorman as the offer and the checking of the car 
as the acceptance. Brien v. Bennett, 8 C. & P. 724; AfcDonough v. Met, 
R. R. Co,, 137 Mass. 210. To hold otherwise would be unfair to the person 
boarding the car since thereby the highest care would be denied when most 
needed. 

Compositions with Creditors — Effect— Joint Debtors. — A and 
B were makers of a joint note. A being insolvent, his creditors made an oral 
agreement to take ten shillings on the pound. This amount had never been 
paid to the holder of the note, who attempted to prove in bankruptcv against B. 
Held, that the promise of A had been taken in satisfaction of any claim against 
him and that the other joint debtor is thereby discharged. In re Pearse, 
1905 Vict. L. Rep. 446. 

The rule generallv laid down is that only a release under seal to one of two' 
joint debtors will release the other. Line v. Nelson, 38 N. J. Law 358. Still a 
seal is not necessary where there is consideration for the release. Heckman 
v. Manning, 4 Col. 543. So it has been held in both England and America 
that where there has been an accord with one joint debtor and the satisfaction 
agreed upon has been rendered, the other debtor is discharged, whether the 
agreement was under seal or not. In re E. IV, .<4., [1901] 2 K. B. 642; Booth 
v. Campbell, 15 Md. 569; but see 15 Harv. L. Rev. 491. Several cases have 
been found in which a composition agreement containing a release under seal 
has discharged a joint debtor not a party thereto. Merritt v. Bucknam, 90 Me. 
146. From the facts reported in the case at hand, the court seems to have gone 
a long way in finding that it was the promise which was taken in satisfaction of 
the claims. Connecting this with the fact that the agreement was merely oral 
and that the consideration which supports a composition with creditors is of a 
very questionable kind, the case illustrates a considerable extension of the 
original rule. 

Conflict of Laws — Change of Sovereignty — Law Governing in 
Tekritory Ceded by State to United States. — The plaintiff's intes- 
tate, while working in the United States Navy Yard in Brooklyn, was killed 
through the negligence of the defendant. When the state of New York in 1853 
ceded iurisdiction over this tract of land to the federal government, a state statute 
existed allowing an action for causing death ; but this was repealed in 1880, 
and another of a similar nature passed. There had been no legislation by Con- 
gress. Held, that the defendant is liable. McCarthy v. Packard Co., 105 
N. Y. App. Div. 436. 

When a state cedes to the United States jurisdiction over territory which is 
used by the latter for certain public purposes, such as the erection ol forts and 
dock-yards, the laws of the state continue in force in .such territory until abro- 
gated or changed bv federal legislation. Chicago, etc., Ry. Co. v. McGlinn, 
114 U. S. 542. Such territor)j, however, ceases to be a part of the state and 
becomes a separate unit subject to the exclusive jurisdiction of the federal 
government. Cf. Commonwealth v. Clary ^ 8 Mass. 72. Hence it follows that 
the statute passed by the state of New York after the cession did not affect the 



132 HARVARD LAW REVIEW, 

law of the ceded territory, but as there bad been no legislation by Congress 
upon this matter the law existing at the time of the transfer was still in force. 
The defendant therefore was clearly liable. The hesitation of the court to 
declare whether the Act of 1880 or the earlier law governed was probably 
due to a former decision of questionable soundness. Cf» Barrett v. Paltner^ 
13s N. Y. 336. 

Conflict of Laws — Execution of Power — What Law Determines 
Sufficiency of Will as Execution of Power. — Testatrix, who had 
under an English will a testamentary power of appointment over personalty, 
died domiciled in France, leavinc; an unattested codicil which was valid by 
French law and which contained a universal legacy, but made no reference to 
the power or the property subject thereto. Hela^ that the codicil does not con- 
stitute an exercise of the power, § 27 of the Wills Act not applying. In re 
Scholefield^ 21 T. L. R. 675 (Eng., Ch. D., July 14, 1905). See Notes, p. 122. 

Conflict of Laws — Jurisdiction — Quasi in rem Garnishment of 
Debt Owed by Non- Resident. — A North Carolina debtor of a North Caro- 
lina creditor, while temporarily visiting Maryland, was garnisheed by a Mary- 
land creditor of his obligee. By statute the non-resident debtor had ample 
opportunity to litigate the claim of the garnishment judgment. Held^ that, 
under the "full faith and credit" clause of the Federal Constitution, the Mary- 
land garnishment judgment is a bar against a subsequent action on the original 
indebtedness in North Carolina. Two justices dissented. Harris v. Balk^ 
198 U. S. 215. 

In holding that a debt may be garnisheed wherever the garnishee may be found, 
the Supreme Court takes the logical step from its previous position that the 
* debt owing to a non-resident may be eamisheed at the domicile of his debtor. 
Chicago^ etc,^ Ry. Co. v. Sturm, 174 U. S. 710. The court finally repudiates the 
artificial doctrine of the situs of a debt, and bases the jurisdiction on the court's 
control over the gamishee-debtor. The fundamental objection is still unan- 
swered, that the power to discharge the debt, which is the effect of allowing the 
garnishment judgment as a plea in bar, can be founded onlv on control over 
both the debtor and the creditor. See 17 Harv. L. Rev. 188. The decision 
is, however, salutary in settling the deplorable conflict as to the validity of these 
garnishment proceedings. Further, the Court takes pains to protect the non- 
resident debtor-creditor by its requirement of due notice from the garnishee, to 
enable him to contest the claim. There still remains for settlement the diver- 
sity as to the materiality of the place for payment of the debt in conferring 
jurisdiction. Doubtless, the Supreme Court will produce uniformity on the 
whole subject by sustaining the jurisdiction in all cases. Cf, Wyethy etc., Co. 
v. Lang6r* Co., 127 Mo. 242; Tootle v. Coleman, 107 Fed. Rep. 41. 

Conflict of Laws — Performance of Contracts — Provision Ren- 
dering Insurance Policy Subject to Foreign Law. — The defendant, 
a life insurance company incorporated under the laws of New York, issued a 
policy in Australia to the plaintiff, providing that he receive an equitable propor- 
tion of its surplus at the end of a specified period, and expressed to be ** subject 
to the laws '' of the former state. Subsequently the legislature of New York 
enacted that a decree for an accounting by an insurance company be granted 
only upon application of the Attorney-General. At the end of the specified 
period the plaintiff filed a bill in a New South Wales court asking for an account 
of the proportion of the defendant's surplus due to him. HeM, that tlie New 
York statute is a bar to tlie plaintiffs bill. Johnsofi v. Mutual Life Ins. Co., 
5 N. S. W. 16. 

Where, as in the present decision, the provisions of an insurance policv are 
admittedly valid unaer the laws of the place of contracting, an express stipula- 
tion that the obligations thereunder shall be defined by the laws of a foreign 
state, is regularly enforced. Phinney v. Mutual Life Ins. Co., 67 Fed. Rep. 
493 ; Mutual Life Ins. Co. v. Hill, 1 18 Fed. Rep. 708. The New York court 
has interpreted the statute in question to affect a change in the law of procedure 



RECENT CASES, 133 

only Swan v. Mutual^ etc.^ Association^ 155 N. Y. 9. Whether it became a 
term of the contract depends therefore solely on whether the express provision 
properly includes a change in procedure as well as in substantive law. Accord- 
me to a principle of the conflict of laws only the rules of substantive law appli- 
cable to a contract may difiPer from the law of the forum. HoadUy v. Northern 
Transportation Co,^ 115 Mass. 304. Consequently, if this statute is interpreted 
to be a part of the contract, the plaintifiE^s only remedy is in New York. The 
clause in the policy is ambiguous, and if construed most strongly against the 
insurer, accoraing to the general rule, seems not to include a statutory regula- 
tion of procedure restricting the remedy of the insured to a foreign jurisdiction. 
But aside from the statute the court might properly have denied an account in a 
controversy concerning the internal management of a foreign corporation. 
Clark V. Mutual, etc, Association^ 14 App. D. C. 154. 

Constitutional Law — Impairment of the Obligation of Con- 
tracts — Change of Remedies. — A Marvland statute made each share- 
holder of a trust or banking corporation liable in an action at law to any 
creditor of the corporation for double the par value of the stock held. A 
subsequent statute, which changed the remedy to a bill in equity by all the 
creditors against all the shareholders, was made retroactive in effect so as to 
abate all actions at law then pending. Held^ that the statute is unconstitutional. 
Myers v. Knickerbocker Trust Co., 139 Fed. Rep. 11 1 (C. C. A., Third Circ). 

Though the Court of Appeals of Maryland recognized that the statutory 
liability of shareholders to creditors of a corporation is contractual in its nature, 
yet it decided that the statute here involved did not impair the obligation of 
contracts. Miners* &* Merchants* Bank v. Snyder, 59 Atl. Rep. 707. A dis- 
tinction was early taken between the obligation of a contract and the remedy to 
enforce the obligation. See Sturges v. Crowningshield, 4 Wheat. (U. S.) 122, 
200. From this, some courts inferred that the remedy could be changed at will 
or absolutely withdrawn. See Ready, Frankfort Bank, 23 Me. 318, 321. But 
the federal courts, followed by the decided weight of authority, take the position 
that the remedy existing when the contract was made is part of the obligation. 
Edwards v. Kearzey, oo U. S. 595. Clearly, therefore, all remedy cannot be 
taken awav. See (Salfw, Nagger, 8 Mass. 423, 430. The state may, however, 
alter the form of the remedy or limit the time for its application. Paschall v. 
Wkitsett, 1 1 Ala. 472, 478. It may likewise provide a new or more effective 
remedy, as this could in no way impair the obligation. But in professing to 
change merely the remedy the state must not impair rights accruing under the 
contract ; ana the substituted remedy must be substantially as effective as before. 
Western Nat. Bank of New York v. Reckless, 96 Fed. Rep. 70. In the case 
under consideration the obligation seems clearly impaired. 

Constitutional Law— Vested Rights -— Legislative Authorization 
OP Nuisances. — The defendant railroad located its main line, together with 
a freight yard and depot, near enough to the plaintiff's premises to cause her 
serious inconvenience and discomfort. Held, that the plaintiff may recover 
for such injuiy, although the value of her land and buildings has not been 
diminished. SL Louis, etc., Ry. Co. v. Shaw, ^^ S. W. Rep. 817 (Tex., Civ. 
App.). See Notes, p. 127. 

Contracts — Construction — Implied Promise to Use Diligence 
IN Forwarding to Commission Agent. — A company engaged the plain- 
tiff to sell eoods for it on commission, but was so negligent in not delivering on 
time, that the plaintiff failed to earn many commissions he otherwise might have 
obtained. For this the plaintiff brought action. Held, that he cannot recover, 
since no promise to use due diligence can be implied from the contract to em- 
ploy. Byms V. United Telpherage Co., loc N. Y. App. Div. 69. 

The general rule is that a promise will be implied whenever it is necessary 
to give to the transaction the effect which both parties intended. Oldens, Ltd. 
V. Nelson, [1003] 2 K. B. 287. On this principle, where a doctor sold his prac- 
tice in consicferation for a part of the future profits, the court implied a promise 
by the vendee "to take common and ordinary care to carry on the business so 



134 HARVARD LAW REVIEW. 

as to realize receipts " ; and the vendee was held liable for going out of practice. 
Af^Intyre v. Belcher^ 14 C. B. (N. s.) 654. Similarly a contract to employ a 
commission agent has been held to include an impliea promise to furnish goods. 
Turner v. Goldsmith, [1891] i Q. B. 544. If, then, the companv had entirely 
stopped sending goods, it would have been liable. But, so far as the parties are 
concerned, the enect of not sending any soods is equivalent to that of sending 
them so late that no one will buy. In each case, the plaintiif loses commissions 
through the default of the defendant ; and in each, the orieinal agreement is 
shorn of "the effect which both parties intended.'* It wouM seem, therefore, 
that a clearer instance of an implied promise could hardly be found. 

Contracts — Defenses — Impossibility by Domestic Law. — A lessee 
covenanted to pay certain rent and to use the demised premises for no purpose 
except that of a saloon. At the time the lease was executed a law was in 
force by which any county mieht adopt prohibition by popular vote. Before 
the term began, but after the Tease was executed and delivered, the county, in 
which the demised premises were, did so adopt prohibition and thereby ren- 
dered it impossible to use the premises for a saloon. HeUii that the lessee is 
not absolved by such impossibility from either covenant. Houston Ice^ etc,^ Co, 
V. KeenuHy 88 S. W. Rep. 197 (Tex., Sup. Ct.). 

The court treats an impossibility created by the application of domestic law 
as analogous to a supervening impossibility of fact, and to determine whether 
performance should oe excused applies the test of ability to foresee. For a 
discussion of the principles involved, see Notes, 18 Harv. L. Rev. 384. 

Copyright — Infringement — Musical Composition. — The plaintiff 
brought suit to restrain the infringement of copyrights of two songs, which 
the defendant company had reprmiuced and sold m the form of perforated 
records, designed for use with mechanism to play the compositions on a musical 
instrument. Heldy that a musical composition is not subject to copyright, but 
only its material embodiment in the form of a writing or print, and that the per- 
forated sheet is not an infringement of such copyright White-Smith Pub, Co, 
v. Apollo Co,, 139 Fed. Rep. 427 (Circ. Ct., S. D., N. Y.). 

At common law, the owner of an unpublished composition has an absolute 
property therein, but this right is lost on publishing. Drone, Copyrights 102, 
1 16. Congress has power to secure **for limited times to authors and inventors, 
the exclusive right to their respective writin&:s and discoveries.*' U. S. Const., 
Art. I, § 8. The term " writings" includes all forms of writing, printing, engrav- 
ing, etching, etc., by which the ideas in the mind of the author are eiven visible 
expression. Lithographic Co, v. Sarony, 11 U. S. 53. The musicaf conception, 
then, as an idea, is not subject to copyright. Ditson Co, v. Littleton, 67 Fed. 
Rep. 905. At the time of publishing the composition, a statutory copyright may 
be acquired, which gives the proprietor of any musical composition the exclu- 
sive liberty of copying and vending the same. U. S. Comp. St. 1901, § 4952. 
A copy is ^' that which comes so near to the original as to give every person 
seeing it the idea created by the original." West v. Francis, 5 Ban. & A. 
737» 743- The perforated roll does not suggest the original to the eye, but is 
a mere part of the mechanism intended to produce the sound of the melody. 
The decision reached by the court is logical, and is supjported both in Eng- 
land and in this country. Boosey v. whight^ [1900] i Ch. 122; Kennedy y, 
McTammany, 33 Fed. Rep. 584. 

Corporations — Foreign Corporations — Conditions upon Right 
to Do Business: Whether Compliance Creates a New Corpora- 
tion. — A Kentucky statute required that tio foreign railroad corporation should 
operate within the state until it should have become a corporation of the state, 
and provided that it might become incorporated by filing a copy of its charter, 
and that " thereupon . . . such company . . . shall at once become and be a 
corporation, citizen, and resident of this state." A foreign railway company 
complied with the statute, but, as a foreign corporation, paid a corporation 
franchise tax. Held, that the railway is not liable to pay a second franchise tax, 



RECENT CASES. 1 35 

since it has not become a separate domestic corporation. Commonwealth v. 
Chesapeakiy etc,,, R, R. Co., 37 Ky. Law Rep. 1084. 

A state*s right to dictate Hie conditions upon which a foreign corporation may 
do business enables it to require reincorporation as a domestic corporation. 
Whether compliance amounts to more than a license to the foreign corporation 
is a question of legislative intent, but statutes in substantially the same language 
have been genersuly construed as creating within the state a second distinct 
corporate entity. Debnam v. Southern, etc,, TeL Co,, 126 N. C. 831. The 
present decision escapes some of the curious anomalies which follow the general 
view. See 13 Harv. L. Rev. 597. But it would seem that an equally just 
result might have been reached, avoiding double taxation, through a more ob- 
vious construction of the statute: that as a condition pjrecedent to entering 
Kentucky, the foreign corporation formed a new domestic corporation which 
was taxaole ; that the old corporation, not doing business in the state, was not 
taxable ; and that not the second tax, but the first, was void. The case seems 
distinguishable from a late decision of this court holding that such a corpora- 
tion as the defendant is not within a statute levying an organization tax. Cf, 
Cincinnati, etc,, Ry, Co, v. Commonwealth, 26 Ky. I^w Rep. 1 106. 

Domicile — Government Official at Washington. — On a petition 
for divorce, it appeared that the petitioner had left Tennessee with his family 
in 1882. Since that time he had lived in Washington, where he held a civil ser- 
vice position in the Treasury Department. He had made three short trips to 
Tennessee, and had voted there at those times. He testified that it had always 
been his intention to return to Tennessee if he should lose his position. Sec- 
tion 4203 of the Code provides that a divorce may be granted where the peti- 
tioner has resided in the state for the two years next preceding the filing ot the 
petition. Held, that the petitioner has lost his domicile in Tennessee, and the 
court is without jurisdiction. Sparks v. Sharks, 88 S. W. Rep. 173 (Tenn.). 

Divorce is regulated by the law of the aomicile of the parties. Le Mesurier 
V. Le Mesurier, [1895] A. C. 517. Residence as used for the purposes of 
divorce is equivalent to domicile. Shaw v. Shaw, 98 Mass. 158. Domicile 
means a person^s legal home. It requires both the animus and the factum. 
Bell V. Kennedy, L. R. i H. L. Sc. 307. The intention is itself a question of 
fact, to be determined by evidence, the declarations of the party not being con- 
clusive. In re Craignish, [1892] 3 Ch. 180. In England an intention to remain 
permanently is necessary. Bellw, Kennedy, supra. In the United States a less 
settled intention will be sufficient, as, for instance, to remain while one is work- 
ing in a town, or while a student, provided the person has no other home. IVil- 
^aham v. Ludlow, 99 Mass. 587 ; Putnam v. Johnson, 10 Mass. 488. The 
Tennessee court seems to have considered that the acquisition of an actual 
home in Washington with the intention of remaining there for an indefinite time 
countervailed declarations of intention to return to Tennessee upon the happen- 
ing of an uncertain future event. Cf, Afooarw. Harvey, 128 Mass. 219. The 
result seems consistent with the general conception of this subject held by the 
American courts. 

Elections ~ Discrimination in Form of Ballot. — A statute pro- 
vided that squares be printed opposite the names of parties on the official ballot, 
and that citizens who so desired mieht vote a straight ticket by marking a single 
cross. Held, that this provision does not impair the freedom and equality of 
elections. Oughton v. Black, 61 Atl. Rep. 340 (Pa.). 

A difference in the labor of preparing a ballot is not conclusive of real im- 
pairment of the constitutional principle of freedom and equality of elections. 
See Todd v. Election Commissioners, 104 Mich. 474. Since the ballot must 
be limited in size, a statute that restricts representation on it to parties that 
received a certain percentage of the vote at the last election is reasonable so 
long as the voter may insert other names at will. Plimmer v. Poston, 58 Oh. 
St. 620. But if he is confined to the printed names, the better view is that his 
freedom of choice is impaired. Lamar v. Dillon, 32 Fla. 545. A law that 
names of candidates nominated by two parties be printed but once on the ballot 



136 HARVARD LAW REVIEW, 

!s sound, although the voter may be inconvenienced thereby, Runge v. Ander 
son, 100 Wis. 523. A statute like that in the present case has been upheld. 
Ritchie v. Richards, 14 Utah 345. But one with an added proviso invalidating 
ballots containing other marks was declared unconstitutional as tending to dis- 
franchisement, since a cross opposite the name of a party that had nominees for 
less than the full number of offices would cast no vote for the others, and an 
attempt to fill in the blanks would invalidate the whole ballot. Eaton v. Brown, 
96 Cal. 371. These illustrations go to show that mere inconvenience is not 
impairment, and fully support the reasoning of the decision under consideration. 

Estoppel— Parties Estopped — Estoppel against State and United 
States. — In accordance with an established custom, but under a misconstruc- 
tion of law, accounts of a marshal, covering certain services rendered by his 
deputies, were approved bv the court to which they had been presented at in- 
tervals during his term ot service, and were allowed by the proper officials of 
the Treasury Department. The money was paid by the government with 
knowledge that the ^eater part of it would be paid over by the marshal to his 
deputies. In an action by him, five years after his retirement from office, durinp^ 
which time the government had made no complaint of these payments to him, it 
set them up as a counterclaim. Held^ that it is estopped. Walker v. United 
States, 139 Fed. Rep. 409 (Circ. Ct., M. D., Ala.). See Notes, p. 126. 

Evidence— Documents— Carbon Copies as Duplicate Originals. 
— Semble, that in an action of assumpsit against a carrier for loss of goods, a 
carbon copy of the letter sent to the carrier notifying it of the loss is admissible 
as a duplicate original. Chesapeake &* Ohio Ry. Co. v. Stock &■» Sons, 51 S. E. 
Rep. 161 (Va.). See Notes, p. 123. 

Evidence — Documents — Recital in Ancient Deed not Admissible 
TO Prove Relationship. — An ancient deed reciting that the grantors were 
heirs of a former owner was ofiEered as evidence of such fact. There was no 
proof that possession of the premises had been held under the deed. Heid, 
that the evidence is not admissible. Lanier \, Hebard, 51 S. E. Rep. 632 (Ga.)* 

Ancient deeds have been admitted in some jurisdictions as evidence of a rela- 
tionship therein recited, though the courts have differed as to the requirement 
of possession under them as a condition precedent to their admission. Deery 
V. Cray, 5 Wall. (U. S.) 795; Scharffv. Keener, 64 Pa. St. 376; contra. Fort 
V. Clarke, i Russ. 601. Although the court in the principal case might have 
excluded the evidence on the sole ground that possession had not been shown, 
yet it went further and intimated that even if possession had been shown the 
evidence would not have been admitted. This position seems sound. Recitals 
of relationship in a recent deed are generally held inadmissible. Costello v. 
Burke, 63 la. 361. There would appear no reason for a different rule in the 
case of ancient deeds. The fact of ancientness should be effective merely to 
authenticate the instrument, and should not remove the necessity of complying 
with the requirements of the pedigree rule. It is to be observed that in most of 
the cases where the evidence nas been received this rule has not been infringed. 
Cf, Fulkerson v. Holmes, 11 7 U. S. 389. 

Executors and Administrators — Rights — Exercise of Right of 
Retainer against Judgment Creditor. — The plaintiff, in a suit upon a 
debt, recovered judgment de bonis testatoris azainst the defendant, who was the 
executrix under a will. The defendant herseS was owed a debt by the testator, 
but did not plead piene administravit or a right of retainer. Later the plaintiff 
obtained an order for the administration of the testator's estate, which proved 
to be insolvent. The defendant thus claimed to be entitled to exercise her 
right of retainer against the plaintiff. Held, that she cannot do so. in re 
Mni-^nn, 21 T. L. R. 765 (Eng., Ch. D., Aug. 10, 1005). 

The common law right of an executor to retain from the assets of the estate 
in priority to other creditors of eaual degree an amount owed him by the testa- 
tor, though abolished or modified by statute in about all the states of this coun« 



RECENT CASES, 1 37 

try, slill obtains in Eng;Iand. /;/ re Aftty, 45 Ch. D. 499. Furthcniiore this 
right is not destroyed by a decree for the administration of the estate. JVunn 
V. Barlowy i Sim. & St. 588. A judgment, however, recovered by a creditor 
against an executor who does not plead piene administravit or a similar plea 
^eging insufficiency of assets, is conclusive upon him that he has assets to 
satisfy such judgment Hamsden v. Jackson^ i Atk. 292. From this it would 
seem to follow that he could not later assert his right of retainer to the prejudice 
of this creditor. See In re Hubback^ 29 Ch. D. 934, 941. There would appear 
no reason, however, why he should not retain against other creditors. Cf, 
Wilson V. Coxwell^ 23 Ch. D. 764. But since the loss of his right to retain 
against the judgment creditor is due to the executor's own fault, it would seem 
that he should bear the burden of this loss and retain from the other creditors 
only the amount by which their dividends would have been diminished had he 
pleaded properly. 

Judgments — Foreign Judgments — Enforcement of Dormant Judg- 
ment IN Sister State. — A judgment was obtained against the testator in 
Kansas. In an action thereon brought in Rhode Island against his executor, 
the defendant pleaded that the testator had died more than one year previous, 
and that the action was therefore barred under Gen. Stat. Kan. 1901, § 4883. 
Held^ that in an action on a judgment of a sister state the /ex fori governs rather 
than the /ex /oct, and that the plaintiff may accordingly recover. Ft'rs/ Na- 
tiona/ Bank v. Hazie, 61 Atl. Rep. 171 (R. I.^. 

A state has power to prescribe the remedies which it will allow within its 
jurisdiction. The statute of limitations is held to affect the remedy and not die 
right, and the /ex fori will in general prevail. M^E/moy/e v. Cohen, 13 Pet. 
(U. S.) 312. But when a judgment is barred in the jurisdiction where obtained, 
the rule is somewhat doubtful, though unquestionably a state may allow an 
action in such a case. Afi/ler v. Brenham, 68 N. Y. 03. Nevertheless, as the 
whole question is one founded on public policy, the better opinion, which is 
supported by the weight of authority, would appear to sustain the view that 
an action on a judgment barred by the laws of the state of its promulgation 
should not be allowed in another state, as it would seem a mere gratuity for a 
sister state to give it greater efficacy than its home tribunal. St. Louis, etc, 
Co. V, Jackson, 128 Mo. 119. A judgment barred by special statute applying 
to personal representatives of a decedent, as in the case at hand, is a dormant 
judgment equally with one barred by general statute. Mawkinney v. Doane, 
40 Ran. 676. The result reached by the court may be supported, however, on 
the alternative holding that the plea did not bring tne right of action within the 
Kansas limitation. 

Judgments — Foreign Judgments — Right of Foreign Corporation 
TO Sue. — The plaintiff, a foreign corporation, recovered judgment in Missouri 
on a contract made in Texas and sought to enforce that judgment in the latter 
state. The defendant alleged that the plaintiff at the time of the contract 
had not applied for or else had forfeited his permit to do business in Texas and 
hence could not sue there upon the judgment, since it was a demand arising 
out of the contract within the provisions of Rev. Civ. St. 1895, arts. 745, 746. 
He/d, that if such facts concerning the permit are proved, the plaintifE cannot 
recover on the judgment. St, Louis, etc, Co, v. Beilhars, %% S. W. Rep. 512 
(Tex., Civ. App.). 

It has been said in a case cited as a precedent for this decision that before en- 
forcing a sister-state judgment under the "full faith and credit" clause of the 
Federal Constitution (Art. 4, § i) a court may ascertain whether the claim upon 
which it is based is such a one as that court has jurisdiction to enforce. Wis- 
consin V. Pe/ican Ins, G?., 127 U. S. 265. This rule has already been practically 
confined to penal judgments, which are distinguishable upon the ground that the 
real plaintiff is not a citizen but the foreign state itself, and judgments in favor 
of citizens alone are entitled to extra-territorial recognition. See Huntington v. 
Attri//, 146 U. S. 657. Since a corporation, also, is not a citizen, within U. S. 
Const., Art. 4, § 2, a state may as it sees fit refuse to entertain its suits. Angio- 



138 HARVARD LAW REVIEW. 

American Prav. Co, v. Davis Prov, Co,, No, i, 191 U. S. 373; see also 17 
Harv. L. Rev. 417. Upon the basis of this right the principal case can be 
supported if the judgment can be said to be a demand arising out of the con- 
tract, upon which the Texas statute forbids a foreign corporation to sue. 

Larceny — Consent — Agent. — The prisoner was by agreement allowed 
to take from the prosecutor's pile of ashes as much as he wanted at a certain 

Erice per ton, upon the understanding that the amount taken should be weighed 
y the prosecutor's a^ent, who was to enter the weight in a record book. The 
weigher in collusion with the prisoner entered in the book a ton and a half less 
than was weighed out. Held, that the prisoner is guilty of larceny of the ton 
and a half. Rex v. Tideswell, [1905] 2 K. B. 273. 

As the court points out, the title had not passed to the prisoner before the 
entry in the book, because the weigher and the prisoner were conspirators against 
the prosecutor, and therefore the weigher lost his power as agent to transfer 
title to the prisoner. Re^na v. Honwy, i C. & K. 305. This violation of the 
owner's possession was without his consent. True, at the time of his agreement 
with the prisoner he consented to the latter's taking what he might need, but 
this consent was given only upon condition that the ashes be weighed and the 
correct weight entered in the book. In the nature of things consent to a present 
taking cannot be upon condition, yet consent to a future taking maybe. If the 
condition is unfulfilled, the taking is without consent and is therefore larceny. 
Carrier's Case, Y. B. 13 £dw. IV. 9, pi. 5. As larceny must be of specific 
property, it would seem that the conviction for the ton and a half can best be 
supported by proof of the larceny of the total amount taken. See State v. 
Martin, 82 N. C. 672. 

Municipal Corporations — Contracts — Patented Articles. — The 
defendant advertised for bids for making street improvements, specifying that 
a patented pavement would be recjuired and stating that the patentees had 
agreed with the city to sell to any bidder, at a certain price, the necessary mate- 
rials therefor. A bill was filed to enjoin the lettine of the contract on the ground 
that such a specification was in contravention of the statute requiring contracts 
for street improvements to be let to the best and lowest bidder. Held^ that the 
defendant has no power to make such a specification. Monaghan v. City of In- 
dianapolis^ 75 N. E. Rep. 33 (Ind., Ct. App.). 

The objection to the proposed contract was that it required the use of an 
article subject to a monopoly, while the statute called for competitive bidding. 
Had the specifications simply required the use of materials already in the pos- 
session of the city, obtained in the open market, no objection would have arisen. 
The decision is a perfectly logical result of a literal interpretation of the statute, 
but it is opposed to the prevailing and preferable rule that the city may make 
contracts like the one here contemplated. Hobartv. The City of Detroit, 17 
Mich. 246; contra. Dean v. Charlton, 23 Wis. 590. The basis of the pre- 
vailing doctrine is that it was not the intention of the legislature, which gave 
the city power to make improvements, to prevent it from using patented arti- 
cles when they should be desirable and beneficial. The rule laid down in the 
case under consideration has not proven satisfactory where longest in use. See 
Wis., P. & L. Laws, 1869, c. 316, § 2 ; Kilvington v. The City of Superior^ 83 
Wis. 222. 

Municipal Corporations — Liability for Torts — Recovery by 
Municipality against Negligent Contractor. -— The defendant com- 
pany gave its bond to perform the provisions of an ordinance requiring it to 
save and keep the city fully indemnified from all damages that might occur 
from any of the company's acts. The city sued the defendant in tort for the 
amount of a judgment rendered against the city for a defect in a street, caused 
by the defendant's negligence. Held, that the city may not recover in tort, 
but must seek its remedy on the bond, which defines and limits its rights. City 
of Pawtucket v. Pawtucket Electric Co., 61 All Rep. 48 (R. I.). 

In a case like this the defendant would, in the absence of a bond, be answer- 
able to the municipality in tort. City of Rochester v. Montgomery, 72 N. Y. 



RECENT CASES, 139 

65. Whether or not the bond should bar the plaintiff from such form of 
action must depend upon the intention of the parties as expressed therein. The 
presumption is that the bond is simply a collateral remedy, giving the munici- 
pality a greater security up to a certam amount, yet not waiving its right to 
recover in excess of that amount. Under such circumstances it seems that the 
agreement should not be construed as exclusive of the common law rights of 
the plaintiff unless such construction is necessitated by its clear import or by 
necessarv conclusion from its terms. Such an interpretation would be in accord- 
ance with the analogy of statutes, which are construed strictly when they tend 
to alter the common law. C/, Shaw v. Railroad Co,,, loi U. §. 557. 

Negligence — Defenses — Effect of a Criminal Statute on the 
Deifense of Assumed Risk. — Theplaintiff, a servant, brought action against 
his master, for injuries caused by the unguarded condition of the latter*s ma- 
chinery. The defendant pleaded that his servant had full knowledge and 
assumed the risk. The plaintiff demurred to the plea. Hiid^ that the demurrer 
must be sustained, on the ground that the defendant had failed to comply with 
a criminal statute making it a misdemeanor not to euard machinery of this 
character. One justice dissented. Hally, West and Slade Mill Co,<t%\ Pac. 
Rep. 915 (Wash.). 

By the common law, in occupations attended with unusual danger the master 
is bound to use all reasonably obtainable appliances for the prevention of acci- 
dents. Mather v. Rillston, 15 Sup. Ct. Rep. 464. But a servant who knows 
of the defective condition of the premises and continues to work thereon, is 
barred by contributory negligence from recovery for injuries caused by such 
defect. Lewis v. New York, etc, R, R, Co., 153 Mass. 73. In general a 
statute will not be construed to alter the common law unless it appears that such 
was the intention. Lan^lois v. Dunn Worsted Mills, 25 R. I. 645. The legis- 
lature, in a number of similar statutes, has deemed it necessary expressly to cut 
off the defense of assumed risk, as pointed out by the dissenting opinion. The 
statute in the case at hand is criminal in form, and has no such provision. 
Wash., Laws 1903, c. 37. In the absence of express provision, or of clearly 
expressed intent, the better opinion seems against giving to such statutes an 
interpretation which destroys the defense of assumed risk. Knisley v. Pratt, 
148 N. Y. n2\ CyMaley v. South Boston Gas Light Co,, 158 Mass. 135. 

Partnership — Rights and Remedies of Creditors — Assumption of 
Debts by Continuing Partner, — Held, that a creditor of a partnership, 
having notice of its dissolution and of the continuance of the business by one 
partner who assumes the firm debts, must sue the continuing partner alone and 
exhaust the partnership assets in his hands before he is entitled to a judgment 
against the partners jointly. Morrisey v. Berman, 94 N. Y. Supp. 590. 

The result here reached seems clearly wrong on the following grounds : the 
proposition that a creditor of a solvent partnership must have recourse to the 
firm property before he can reach the individual property of the partners is 
without foundation, the separate estates of the partners bemg liable in the first 
instance. Lindley, Partnership, 7th ed., 229; Stevens v. Perry, 113 Mass. 
380. Though by the arrangement between the partners the retiring partner be- 
comes surety for the other, a surety may be sued upon default of his principal 
before any action is taken against the principal. Penny v. Crane Brothers 
Mf^, Co,, 80 III. 244. Furthermore, there being no novation, the creditor's 
right to sue both original debtors cannot be altered by an agreement between 
the debtors alone. 

Powers — Effect of Appointment to Remainderman. — Bv a will pro- 
bated in 1869, a testator left an estate in trust for his daughter for life, remain- 
der to her heirs, subject however to a power given to the daughter to appoint 
the remainder in fee among her heirs and collateral relatives. This daughter 
died in 1904, leaving a will in which she exercised her power in favor of her 
daus:hter who was her only heir and was alive at the time of the testator's death. 
Held, that the granddaughter takes under the will of 1869, and not under the 



140 HARVARD LAW REVIEIV. 

power of appointment, and that a transfer tax established in 1897 can not be 
imposed upon the property. In the Matter of Lansing, 182 N. Y. 238. 

The position taken by the court, that the appointee can elect either to take 
under the appointment or to retain the estate which by the law of New York 
vested in her on the death of her grandfather, seems untenable. The legal 
condition imposed by the will of the grandfather, which should divest the heir 
of her estate, has happened. To hold that she can determine whether or not it 
shall have any effect, is virtually to deny that it is a le^ condition. A possi- 
ble explanation of the decision is that, since the appomtment operates to give 
the appointee substantially the same estate which she would have had in derault 
of any exercise of the power, it is void. However, this theory has been prop- 
erly repudiated. Sweetapple v. Harlock, 11 Ch. Div. 745. The appointment 
has all the necessary formal elements ; and. that it does not change the quanr 
turn of the appointee's estate, seems no sufficient reason for holding it invalid. 
For a discussion of another aspect of the case, see Notes, p. 122. 

Railroads — Railroad Crossings — Duty to Whistle on Approach- 
ing Crossing. — The trial court charged that it was negligence, as a matter 
of law, for the defendant's engineer to fail to give warning of the train's ap- 
proach to a bridge under which ran a highway. The defendant excepted. Heuif 
that the instruction is erroneous, since the question of the defendant's negli> 
gence is for the jury. Louisville &* N, R, Co. v. Sawyer, 86 S. W. Rep. 386 
(Tenn.). 

In almost all jurisdictions in this country, there are statutes requiring that 
some warning of a train's approach to a grade-crossing be given. And even 
where no such statute exists there is autTiority that failure to give warning is 
negligence per se. See Favor v. Boston, etc.. Corporation, 114 Mass. 350; 
contra, Ellis v. Great Western Ry, Co,, L. R. 9 C. P. 551. In the present 
case, though recognizing that there may be such a duty in regard to crossings 
at grade, the court nevertheless refuses to extend it to non-grade crossings. 
Cf, Pennsylvania R. R. Co, v. Barnett, 59 Pa. St. 259. This decision seems 
correct. The danger incident to the failure to give warning of an approaching 
train is so much greater in the case of a grade than in that of a non-grade cross- 
ing that there is little justification for applying the strict rule in the latter case. 
Furthermore, this distinction between the two kinds of crossings has been rec- 
op;nized in those decisions which hold that a statute requiring a warning to be 
^ven by trains before reaching crossings does not apply to non-grade cross- 
ings. Cf.Jenson v. Chicago, etc., R. R, Co., 86 Wis. s^* 

Restraint of Trade — Sherman Anti-Trust Law — Agreements 
concerning Copyrights and Patents. — Publishers formed an associa- 
tion the members of which agreed to sell copyrighted books only to those 
jobbers and booksellers who would maintain the net prices fixed hy the indi- 
vidual members of the combination. Semble, that the combination is illegal as 
violating the Sherman Anti-trust Law. Bobbs-Aferrill Co. v. Straus, 139 Fed. 
Rep. 155 (Circ. Ct., S. D. N. Y.). See Notes, p. 125. 

Restrictions as to the Use of Property — Enforcement of Re- 
strictions : Who May Enforce. — The legislature of Massachusetts in 
1S61 panted to the Massachusetts Institute of Technology a block of land in 
the city of Boston with the restriction that it should not ** cover with its build- 
ings more than one-third of the area granted.'' The surrounding lots fronting 
on this square were subsequentlv sold by the state for prices considerably in- 
fluenced by the fact that the lots faced this partially open square. No mention 
of the restriction was made in the deeds to the purchasers. In 1903 the legis- 
lature authorized the Institute of Technology to build over their entire block. 
A bill for an injunction was filed bv a sub-purchaser of one of the lots sold hj 
the state to enforce the original stipulation. Held, that the injunction beissuea. 
Wilson V. Massachusetts Institute of Technology, 75 N. E. Rep. 128 (Mass.). 

The real point at issue in this case was as to whether this restriction was 
imposed for the benefit of the neighboring land or for the advantage of the 



RECENT CASES, 141 

state. The fact that the state itself was the orinnal grantor would be an ele- 
ment tending to support the latter view. The decision, therefore, exemplifies 
in an emphatic manner the inclination of courts to refi;ard such restrictions as 
made for the benefit of the neighboring land. For a further discussion of the 
principles involved, see 18 Harv. L. Rev. 535. 

Trade-Marks and Trade-Names -- The Right to Trade in One's 
Own Name — Trading on Another's Reputation, — The parties dis- 
solved their partnership in •* The Simon Auction Co." The old business was 
continued under a new name by the plaintiff, who tried to enjoin the defendant, 
though the latter was now engaged m a different kind of business, from using 
the old name. Held^ that the plaintiff is not entitled to the injunction, since 
the defendant is not using the name so as to mislead the public or defraud the 
plaintiff of any trade to which he is entitled. Blanchard Co. v. Simon, 51 
S. E. Rep. 222 (Va.). 

For a discussion of the principles involved, see 18 Harv. L. Rev. 56. 

Trusts — Constructive Trusts — Forged Transfer of Stocks. — 
The defendant company was induced to transfer the plaintiff's registered bonds 
to bearer through a resolution of the latter's board of directors and a power of 
attorney, both forged by its delinquent treasurer. The power of attorney was 
witnessed by the other aefendant, a member of the New York Stock Exchange, 
as required by the rules of that body, making such endorsement *' a guarantee 
of the correctness of the signature of the party in whose name the stock stands," 
and was forwarded by him with the certificates to the defendant companv. 
The plaintiff now brings suit for the bonds, and the defendant company seeKS 
indemnity against the broker. Heldy that the plaintiff can recover, and the 
defendant company is entitled to indemnity. Ciarkson Home v. Missouri^ €tc,<, 
Ry. Co,, 182 N. Y. 47. 

The defendant innocently presented a forged transfer-deed of stock and re- 
ceived from the plaintiff company new certificates which were in turn transferred 
to a bonaJitU purchaser. When the forgery was later discovered, the plaintiff 
was forced to issue equivalent stock to the true owner and now seeks indemnity 
from the defendant. Neither party was negligent. Held, that the defendant 
is liable. Corporation of Sheffield v. Barclay, 93 L. T. 83 (£ng., H. of L., 
July, 1905). 

The House of Lords now reverses the judgment of the Court of Appeals and 
reinstates that of Lord Alverstone whicn was noticed in 16 Harv. L. Rev. 
228. For a full discussion of the subject see two articles in 1 7 ibid, 373 and 
543. The New York decision, which is a case of first impression in that juris- 
diction, might well have been rested on the broader grounds enunciated in the 
latter article. 

Trusts — Creation and Validity — Whether Bequest on Secret 
Understanding Creates a Trust. — A testator bequeathed to J. D. two 
legacies ; one *' to be expended by him, as I have instructed him during my life- 
time " ; the other, " for his personal use." Held, that the first bequest is in- 
valid, as an unsuccessful attempt to create a trust In re Keenan, 94 N. Y. 
Supp. 1099. See Notes, p. 128. 



142 HARVARD LAW REVIEW. 

BOOKS AND PERIODICALS- 

I. LEADING LEGAL ARTICLES. 

Federal Supervision of Insurance. — A new subject for the application 
of the power of Congress to regulate interstate commerce is suggested by the 
recommendation of a federal statute regulating insurance, which was made by 
a special committee at the last meeting of the American Bar Association. Re- 
port of the Committee on Insurance Law^ Four of the committee*s five mem- 
oers joined in the majority opinion, while the fifth presented a minority report. 
Neither report was acted upon bv the association, but a resolution declaring 
the opinion that federal control ot insurance would be unconstitutional was re- 
ferred to the Committee on Insurance Law for the present year. 

The members of the committee, while unanimous in the opinion that Con- 
gressional regulation is desirable and practicable, disagree upon the question of 
Its constitutionality. The majority report maintains that the past decisions of 
the United States Supreme Court do not exclude the business of insurance 
from the definition of ** commerce,'* and intimates that Congress itself has the 
exclusive power to determine what articles are the subjects of interstate com- 
merce within the meaning of the constitutional provision. The minority opinion 
denies both these propositions, and insists that federal supervision is impossible 
without a constitutional amendment. 

The statement that Congress has authority to define the limits of its power to 
regulate interstate commerce, which is at least startling, suggests an examina- 
tion of the authorities upon which it purports to be based. The majority rely 
upon isolated sentences quoted from decisions which denied to a state the 
power to exclude from its Doundaries intoxicating liquors in the original pack- 
ages. The language of these cases is clearly shown by the context to mean 
that Congress, as against the asserted police power of a state, has authority to 
determine whether commodities which are admittedly in fact subjects of com- 
merce within the meaning of the constitutional clause, shall be lawful articles 
of commerce. Further support for the committee's position is sought in the 
famous case of McCuUoch v. Maryland (4 Wheat. [U. S.] 316). This deci- 
sion, however, was simply to the erfect that Congress has the implied power to 
charter a national bank as an appropriate means to the execution of its ad- 
mitted fiscal powers; and the opinion contains no intimation that Congress has 
authority to define the limits of the great substantive and independent powers, 
to which the power of choosing appropriate means of execution was held to be 
annexed as an incident. The authorities cited do not deny that the meaning of 
the term " commerce " in the constitutional phrase is a question of the interpre- 
tation of a written instrument which is to be made by judicial decision, and not 
by legislativeyf/i/. 

The majority's contention, that past decisions furnish no obstacle to federal 
regulation of insurance, is true only to the extent that the Supreme Court has 
never passed upon the validity of an act of Congress regulating insurance. It 
has. however, frequently held constitutional state statutes which totally exclude 
foreign insurance companies from doing business within state territory except 
upon condition that they obtain a license from the state or pay a tax upon the 
amount of premiums secured in the state. Paulv, Virginia^ 8 Wall. (U. S.) 
168, 183; Liverpool Ins. Co. v. Massachusetts, 10 Wall. (U. S.) 566, 573. The 
contention that these decisions have not excluded insurance from the definition 
of " commerce " cannot be supported except upon the assumption that the 
statutes affected only matters local and limited in their nature, which state 
legislatures may regmate in the absence of legislation by Congress. But the 

1 Published in pamphlet form by the American Har Association, Baltimore. 



BOOKS AND PERIODICALS. 143 

opinions, so far from being rested upon this narrow ground, have specifically 
stated that insurance is not '^ commerce *' within the meaning of the constitu- 
tio.nal provision. Furthermore, if insurance were ^* comnierce," state statutes 
exacting a tax or license from foreign insurance companies as conditions pre- 
cedent to their doing business within the state, could not be sustained con- 
sistently with the line of decisions which hold invalid identical statutes 
concerning express companies and railroads. C/*. Crutcher v. Kentucky^ 141 
U. S. 47; Hooper v. California^ 155 U. S. 648, 653; Nuiiing v. Massachu- 
setts^ 183 U. S. C53, 556. In each class of cases the state is not legislating 
concerning merely local subjects, but is interfering directly with the freedom 
of interstate business ; in each the interference is sought to be justified by the 
right to exercise police powers. The only valid distmction between the two 
classes of statutes is that one does, and the other does not, attempt to regulate 
" commerce." The recent decision concerning lottery tickets, which is cited 
in the majority report holds, not that lottery companies are engaged in *' com- 
merce,'' but that the carrying of lottery tickets by an express company is 
commerce. Lottery Case, 188 U. S. 321, 354. This opinion, from which four 
justices dissented, can hardly be said to have weakened the authority of the 
earlier cases recognizing the power of a state to regulate insurance. A rever- 
sal of these decisions could be justified only upon the ground that a radical 
change in the nature of the business of insurance has occurred since they were 
rendered; and on principle it seems difHcult to distinguish the present business 
of insurance from that of the negotiation of any contract by mail between par- 
ties residing in different states. 



Dishonor op a Certified Check. — It is common belief that a bank is 
under an absolute obligation to pay a check certified at the instance of the 
payee as long as the check remains m his possession, and that the payee, ques- 
tions of forgery aside, has an irrevocable right to compel pavment, irrespective 
of the circumstances under which he procured the check. Niorsb, Banks and 
Banking, 4th ed., § 414. While admitting this as a general principle, a late 
article by an anonymous writer suggests that the bank, under certain circum- 
stances, IS justified in refusing to nonor the check. Stopping Payment of a 
Certified Cheeky 22 Bank. L. J. 411 (June, 1905). It is, of course, assumed that 
the check has not reached the hands of a bona fide purchaser for value. The 
author points out that a certified check is analogous to a promissory note of the 
bank, and that a bank does right in refusing to pay its bank note held by a 
thief. Olmstead v. Bank, 32 Conn. 278. Tnerefore, under like conditions, it 
should also be protected in its refusal to pay a certified check ; and it is con- 
tended that the same power should exist wnen the bank has notice that the 
check was obtained by the payee through fraud on the maker, or as payment 
for an illegal transaction, sucn as gambling, in which both maker and payee 
were concerned. 

Tboueh the writer does not support his view by any theoretical discussion, 
his result appears to be substantially correct. On certification the practice is 
for the bank to debit immediately the amount of the check to the maker's 
account, and credit its " certified check account," which is in turn debited with 
the check on pa3rment. The drawer being thus e£Fectually deprived of all con- 
trol over that amount of his earlier credit, a novation arises, by which the bank 
promises the drawer to pay the payee, in consideration of the drawer's givinfi^ 
up all claim on it. As the act of certification is merely a short cut for actual 
payment by the bank of the amount of the check, and its redeposit by the 
payee, the payee, as consideration for the bank's promise, accepts the extinc- 
tion of the check and allows the money to remam on deposit. Finally, the 
novation is completed by the payee's promise to accept the bank as debtor in 
the drawer's place, for which the latter promises to release his claim against 
the bank. A certified check is, then, like a bank note — the maker is released, 
and the bank is bound directly to the payee. 



144 HARVARD LAW REVIEW, 

When fraud becomes an element of the situation, however, the ordinary rule, 
founded on equitable principles, permitting the defrauded party to trace and 
recover his property, must applv. 2 Parsons, Contracts, gth ed., 949. 
Thus in the case of a certified cneck in the hands of a fraudulent payee, the 
maker has a right to recover it, and the payee holds it in constructive trust for 
him. See 19 Harv. L. Rev. 55. If the bank has knowledge of the facts, 
it would seem proper not only that it should have the right not to honor the 
check, but that it should be liable to the maker, if it does honor it. That the 
payee has turned penitent when he asks the bank to pay the check, and is 
about to reimburse the maker, is highly improbable, and payment by the bank, 
with knowledge of these circumstances, is an equitable tort against the maker, 
an injury to his beneficial interest in the check, the res^ such as to make the 
bank liable to him, as cestui^ for its connivance at the breach of the constructive 
trust. Cf. 19 Harv. L. Rev. 68. Where the pajree has been guilty of theft, 
the same constructive trust relationship would arise ; but it is difficult to find 
the basis on which the drawer could urge any equitable claim where he and the 
payee are confederates in illegality. In such a case the maker, since he is 
in pari delicto with the payee, is in no position to claim any equity in his own 
favor. See McCardw, Bank, 96 Cal. 197. 



Dependent Services of Common Carrier. — In the general develop- 
ment of the law of public-service companies, certain phases of the subject have 
received inadequate treatment by courts and text-writers. One of these relates 
to the dependent services of common carriers. A recent article by Professor 
Wyman furnishes an admirable discussion of the question, not only collating 
the leading cases on the points involved, but working out a consistent theory 
by which to test the conflictine decisions. The Public Duty of the Common 
Carrier in Relation to Dependent Services, by Bruce Wyman, 17 Green Bag 
570 (Oct., 1905). The subject involves the relations of railroads to express 
companies, palace and refrigerator car companies, hackmen at railway stations, 
transfer companies, etc. The authorities seem to be about equally divided, 
and as the question has been passed upon as yet in less than half of the States 
of the country, the subject is a fruitful one for discussion. 

The case of the express companies may be taken as typical. Is the carrier 
bound to furnish express facilities to all express companies which apply, or mav 
it make an exclusive agreement with one company for the carriage of all 
express matter over its line? The carrier's responsibility is founded on its 
public duty. It seems that it owes no direct duty to the express companies, 
for it might, ultra vires aside, carry on an express business itself and shut out 
all express companies from its line. Moreover, it has never held itself out as 
a carrier for all express companies. Historically the relation has alwavs been 
based on contracts with individual companies. Its duty is to the snipping 
public to carry all express matter from one end of its rails to the other. If 
none of the law of public service applies between the carrier and the express 
company, however, it follows, argues Professor W;^man, that the latter may 
be charged extortionate prices by the carrier, which in turn will react upon the 
public. The express company is itself a common carrier, and therefore bound 
to carry at a reasonable rate ; but this dutv is relative, and if it must pay an 
increased price, it may charge it against the public as a necessary operating 
expense. To protect the public from such a result the author submits that we 
must apply the law of public service companies throughout. To insure the 
public the satisfactorv service at a reasonable rate, to which it is undoubtedly 
entitled, we must hold that the carrier performs its whole duty only by serving 
all express companies with adequate facilities, without discrimination and for a 
fair compensation. 

It may be argued, however, that since the railroads' only duty is to the 
public, so long as the public are served to their reasonable satisfaction, it is a 



BOOKS AND PERIODICALS. 145 

matter of no importance as to the particular agencv through which this is 
accomplished. Sargent v. Boston^ etc^ R. R., 115 Mass. 410. This doctrine 
has received the approval of the United States Supreme Court. The Express 
Cases, 117 U. S. I. On strict legal theory it seems difficult to escape the result 
reached. Moreover, it does not seem tnat it allows the exploitation of the 
public. For if the railroad is under a duty to carry at a reasonable rate, it 
cannot escape this obligation by delegating the performance of it. Whether it 
chooses to act through one express company or several, the public may still 
enforce its right to a reasonable rate from the road. The case does not seem 
to present anv insuperable practical difficulty, as the public may work out its 
riehts as to tne transportation of express matter along lines similar to those 
fculowed as to the carriage of freight. Professor Wvman's remedy is open to 
objection from a practicsu standpoint, in that it woula tend to increase through 
the wastes of competition the reasonable rate which the public must pay. 



Alien Labor Legislation and thb Courts. Henry A, Prince. 41 Can. L. J. 

628. 
Chrisi'Ian Scientists and the Law. Walter Mills. Demanding that they be 

treated as physicians in so far as to place them under the Medical Acts. 4 Can. 

L. Rev. 435. 
Comparative Study of the Constitutions of the United States of 

Mexico and the United States of America, A. William H. Surges. 

Stating and contrasting seriatim the provisions of the Constitutions of the two 

countries. 39 Am. L. Rev. 711. 
Distinction between Real and Personal Property, The. 7! M. Advocat- 
ing the abolition of the distinction between realty and personalty save in so far as 

inherent in the nature of things. 9 L. Notes (N. Y.) 125. 
Exclusion and Deportation of Aliens. Parliamentum. Considering whether 

an act to return an alien " to the country whence he came " is extra-territorial in 

effect. 25 Can. L. T. 487. 

EXCLUSIVENESS OF THE PoWER OF CONGRESS OVER INTERSTATE AND FOREIGN 

Commerce. I, II. James S. Rogers. 53 Am. L. Ree. 529, J93. 

Exit of the Doctrine op Situs. /oAn R. Road. A fevorable comment upon the 
recent decision of Harris v. Halk, 25 Sup. Ct. Rep. 625, holding that where a 
debtor is garnisheed while temporarily within a foreign state and compelled to pay 
the debt, such payment furnishes a defense to a subsequent action by his creditor 
in the state where the debt was created. 61 Cent. L. J. 26c. 

Federal Supervision of Insurance. Anon. 9 L. Notes (N. Y.) 123. 

Jurisdiction ration e origin is. George Duncan. Arguing that a Scottish domi- 
cile and personal citation will give jurisdiction against a defendant living outside 
of Scotland, in a petitory action. 17 Jurid. Rev. 2J4. 

Legitimate Functions of Judge-Made Law. Hannis Taylor, An historical 
sketch of the importance of case law in supplementing constitutions and codes and 
in adapting them to changed conditions of society. 17 Green Bag 557. 

Process to stop the Running of the Statute of Limitations, Of. Anon. 
49 Sol. J. 721. 733» 74", 748, 757- 

Public Duty of the Common Carrier in relation to Dependent Services. 
Bruce Wyman, 17 Green Bag 570. See supra. 

Stopping Payment of a Certified Check. Anm. %2 Bank. 1^ J. 411. See 
supra. 

Treaties and Executive Agreements, /okn Basselt Moore, Pointing out dis- 
tinctions to be observed when the question arises, whether ratification by the Senate 
is necessary. 20 Pol. Sci. Quar. 385. 

Where there is a Breach of Contract which may re regarded as total, 
IS the Injured Party prevented from recovering Future Damages, 

BY BRINGING AN ACTION ONLY FOR PaST DAMAGES, WHERE THE TiME FOR 

Full Performance has not arrived ? Anon. Criticising a New York case 
which held that injured party could not recover future damages. 61 Cent. L. 
J. 281. 



140 HARVARD LAW REVIEW. 



II. BOOK REVIEWS. 

Constitutional Law of England. By Edward Wavell Ridges. London : 
Stevens & Sons, Limited. 1905. pp. xxxii, 458. 8vo. 

This is a book of the hour, inspired by the two £reat issues that engross the 
attention of the thinking classes in England at the present moment, imperial 
federation, political and commercial. The author evidently has these matters 
very much at heart and has written with the aim of furnishing all those who 
have the same interest a practical handbook enabling them to post themselves 
rapidly on any of the numerous details of the constitutional mechanism that 
holds together the complex political entity known as the British Empire. In 
other words, it would be useless to turn to it for a careful exposition of the evo- 
lution of the constitution as it exists to-day, or again for a broad and philosophic 
treatment of constitutional questions such as we might expect from Mr. James 
Bryce. Mr. Ridges' aim is closely circumscribed bv existing conditions; his 
method is too handbooky, if the term may be usea, to permit digressive and 
comparative disquisitions. 

Within the limits he has chosen Mr. Ridges does his work well. He divides 
and subdivides his subject clearly, and details are easv to find. He has six 
principal parts: i, The Nature and Sources of English Constitutional Law; 
2, The Legislature and the Public Revenue ; 3, The Executive; 4, The Judi- 
ciary; c, The Church; the Navy and the Army; 6, Countries subject to the 
laws of England. Within these parts are chapters and sections that range in 
matter from Wei-Hai-Wei to the Isle of Man, from the Indian Civil Service to 
the Court of Pied Poudre, and from the origin of the title of Duke to the inci- 
dence of the death duties. 

Mr. Ridges attains a good standard of accuracy ; among his infrequent slips 
the following may be noted. In Miller's case (p. 70) Wilkes was not, as stated, 
committed to the Tower. He refused to appear before the House of Commons 
except as member for Middlesex, and the House shirked the fight and let him 
go. George III. presided over a Cabinet Council on at least one occasion, 
and it is incorrect to say (p. 143) that " since the reign of George I the Crown 
has ceased to attend meetings of the Cabinet." At p. 15 there is a bad error 
in the number of States composing the American Union. Mr. Ridges defines 
constitutional law as embracing laws proper and conventions. These conven- 
tions he groups under eleven heads, the last two of which appear open to 
some exception. These two constitutional conventions are thus stated : 

•' (10) The foreign policy of the country ought to be conducted according to 
the wishes of the two Houses of Parliament, and in case of difference between 
the Houses, in accordance with the wishes of the House of Commons. 

" (11) Declaration of war or peace against the will of the House of Com- 
mons is unconstitutional. In cases of sudden emergency Te. g. insurrection or 
invasion), if the Ministry require additional authority, they should convene 
Parliament." 

Now if a convention means an actual tacit understanding, then surely Mr. 
Ridges goes too far in trying to make the ultimate power of the electorate any- 
thing more than a potential factor in this case. The attitude of the House of 
Commons towards the conduct of foreign affairs has long been one into which an 
element of self-effacement has entered. The Crown has continued to exercise 
a large amount of discretion, whether acting on its own initiative or on the advice 
of ministers. Not only is it the case that treaties implying war or concluding 
peace are constitutionally valid without reference to Parliament, but the House 
of Commons has rarely, if ever, shown any disposition to assert any ereater 
right in such a case than that which it holds in ever)' case of passing a hostile 
vote against the responsible Ministry. It might even be said that under the 
last two British sovereigns, Victoria and Edward, the House of Commons has 
viewed with complacency the personal intervention of the sovereign on more 
than one occasion. In another important question, that of imperial federation. 



BOOKS AND PERIODICALS. \At7 

Mr. Ridges appears to miss some important points. His statement that " the 
federation of ail the Australasian colonies . . . under the Copimon wealth of 
Australia Constitution Act, I900«; marks another stage in the advance of the 
Empire towards cohesion and unity," is one that will not find universal accept- 
ance ; to many it appears that the assimilation of the Australasian constitution 
to that of this country makes eventually for a complete regrouping of the 
Anglo-Saxon communities. Then again in discussing the various schemes of 
federation before the British public at present, he hardly does justice to the 
least ambitious of them, that of which Sir Frederick Pollock is the energetic 
sponsor. Mr. Ridges' point is that a committee of the Privy Council specially 
constituted to advise on colonial a£Fairs would have no weight for lack of legis- 
lative or executive functions ; but the answer to this is that this body might, as 
it became more and more useful, gradually work its way into a position of con- 
stitutional importance very much as the Cabinet has, which, indeed, is the 
main hope of those who advocate this measure. 

The criticisms made are of details and do not affect the value of the book 
which, as a handbook for students or for those interested in the question of 
federation, should certainly prove a convenient guide. R. M. j. 



A Selection of Cases Illustrative of the English Law of Torts. 
By Courtney Stanhope Kenny. Cambridge: University Press. 1904. 
pp. xiv, 632. 8vo. 

This attractive collection of cases published by the Cambridge Press inevita- 
bly suggests comparison with a similar volume lately issued at Oxford under 
the editorship of Messrs. Radcli£Ee and Miles. (See 18 Harv. L. Rev. 159.) 
Both books are avowedlv designed to accompany Sir Frederick I^ollock's trea- 
tise on Torts ; but Dr. Kenny s book follows Sir Frederick's classification more 
closely and is, on the whole, more satisfactory than the Oxford compilation. A 
logical development of the subject is evident, both in the subdivisions and in 
the cases under the various heads. Yet, perhaps, this collection errs in am- 
bitiously including too much within its scope. Thus the cases on Principal 
and Agent might have been spared from a selection of illustrative cases on 
Torts. And while one hesitates to differ with an experienced teacher such as 
Dr. Kenny, one might well think it better to follow an inductive treatment 
throughout in a case-book, by commencing with specific torts, rather than to 
adopt Sir Frederick Pollock's method of presenting first the general principles 
of liability. 

This collection offers a greater diversity and quantity of cases than the earlier 
volume, many of the opinions being considerably abridged. The compiler has 
wisely not confined himself to English cases. Thus, he summarizes and gives 
extracts from Veeelahn v. Guntner (167 Mass. 92), though this treatment is 
hardly adequate iox a full appreciation of the case and the opinion of Mr. Jus- 
tice Holmes. An interesting note on Fair Comment (p. 318) cites the recent 
Cherry Sisters* case in Iowa (114 la. 298). Portions of the opinion in the fa- 
mous Roberson Case (171 N. V. 538), denying the right of privacy, are printed, 
and in a note (p. 367) referring to the article of Messrs. Warren and Brandeis 
on "The Right to Privacy" in 4 Harv. L. Rev. 193, the editor comments on 
the failure of the " effort of the Harvard Law Review to provide a remedy." 
Probably by this time English readers know that the narrow view of the New 
York court has been changed by statute and that, still more recentlv, the New 
York doctrine has been repudiated on common law grounds by tne Georgia 
court. See 18 Harv. L. Rev. 625. In this connection. Dr. Kenny prints a 
most interesting extract from an Indian decision, showing that in view of local 
domestic conditions, the right of privacy is recognized in India to a very wide 
extent. The numerous footnotes throughout the volume, thoueh unpretentious, 
are suggestive. But in one of these notes the editor seems to lend unwarranted 
countenance to the theory of degrees of negligence. See 2 Ames & Smith 
Cas. Torts, 2d ed., 143 et seq. 



148 HARVARD LAW REVIEW, 

The bracketed headnotes are a regrettable feature of the work. This perni- 
cious plan indulgently gives the answer to the problems, the independent solu- 
tion of which is one of the most valuable advantages of the study of cases. 
Further, it results in large, dangerous generalizations of the law, some of which 
in the present volume are positively misleading. Thus, the headnote to the 
Mogul Steamship Case (p. 195) asserts that " the right of competition exists 
even when you conduct the competition by means so unusual as to render it 
* unfair.* '* Again (p. 631), ** Your breach of your contract with one person may 
constitute a tort against another." Throughout the book, headnotes are tainted 
with the ensnaring word " malice," though in several cases the editor repairs 
the mischief by calling attention to the misleading use of the terra (pp. 187, 
308). Further examples could be needlessly adduced. The danger of these 
notes is the greater because of their attractiveness and their convenient form as 
a summary of the law. Despite these defects, however, the collection is signifi- 
cant, not merely as another indication of the progressive tendency in English 
legal education, but also as an effective rejoinder to the unmerited reproach 
that case-books are dull and uninteresting. 



International Civil and Commercial Law, as Founded upon Theory, 
Legislation, and Practice. By F. Meili. Translated and supplemented 
with additions of American and English law, by Arthur F. Kunn. New 
York : The Macmillan Company. 1905. pp. xxvii, 559. 8vo. 

Growing appreciation of the practical importance of a knowledge of Conflict 
of Laws is one of the significant features in the development of modem legal 
instruction. Within the last decade the leading law schools of this country 
have undertaken to teach the subject to their students, and gradually it is being 
added to the curriculum of other schools. But in spite of this renewed interest 
in the topic on which Mr. Justice Story wrote one of his best known qnd most 
valuable works, very little has been done by legal writers in this country to 
give to the profession a useful, up-to-date treatise. Much more attention has 
been given to the subject by Continental jurists ; and it is with the work of one 
of them that this notice has to deal. 

The opportunity for fine reasoning which is offered by Conflict of Laws 
particularly appeals to jurists trained in the civil law. To them, however, law 
is a philosophy, not a science. Each jurist works out a theory which is 
logically sound, and which to his mind would solve the conflicts ot law. But 
he disregards entirely, and without compunction, decisions of courts. In the 
treatise of a continental jurist one finds, not the law as the court makes it, but 
the law as the writer thinks it should be. Professor Meili's work is no excep- 
tion to this rule. For that reason its utility to the American lawyers who 
desire to know foreign law is limited. 

On the other hand, the book is of some academic value. The author has 
consulted, and refers to, treatises by the best known and most distinguished 
jurists of the several nations of Europe, and he also refers to the codes and law 
of most countries in which questions in this branch of jurisprudence have been 
considered. The chief limitation here, and a serious one, is that the codes and 
law of these several countries are not considered on each and every subject 
discussed, but the laws of some countries are referred to under one head, and 
the laws of totally different countries under the next head. In other words, the 
treatment is not complete. It would have been better to have limited the field 
of countries to be considered, and to have stated the laws of the countries 
selected on every point. 

The work of translation has been well done. The book as it appears is 
readable and can be readily understood. Some sentences show, by their con- 
struction, their German origin ; but they are not so numerous as might have 
been expected. The translator has added some English and American cases, 
intending " to state briefly and without discussion or argument, the law recog- 
nized in those jurisdictions, upon the principal points dealt with by the author. 



BOOKS AND PERIODICALS. 149 

Mr. Kuhn franklv says that they are in no sense intended as a full exposition 
of the law upon the topics treatea. He has made a brave attempt, but, from the 
nature of things, it was impossible for him in that way to make a really valu- 
able contribution. The leading cases on the topics treated are not in all in- 
stances given, while a number of the propositions of law are inaccurately or too 
broadly suted. This latter defect is due to form rather than to real error ; but 
because of it the notes as they stand should be used with some caution. To 
those interested in the development of Conflict of Laws the book will still be 
recommended by the amount of learning and useful information gathered within 
its covers. s. h. e. p. 



Law of the Domestic Relations, embracing Husband and Wife, Parent 
and Child, Guardian and Ward, Infancy, and Master and Servant By 
James Schouler. Boston : Little, Brown, and Company. 1905. pp. xxxix, 
421. 8vo. 
To praise a law-book because it contains so much which is not law, is or- 
dinarily a doubtful compliment to the author. When that confused subject 
usually described under the title " Domestic Relations " is under consideration, 
however, one is prepared to see every rule suspended or reversed. This branch 
of law our legislatures have so diverted from its ori^nal channel that practi- 
tioners of to-day are frequently in danger of losing sight of the sources from 
which it starts. Yet the original common law so controls and modifies the 
meaning of the various sweeping statutory changes, that any opinion based 
upon the statutes alone is likely to be most misleading. Accordingly, the writer 
of the elementary treatise under discussion, who must perforce cover but a 
small part of the law, has chosen wisely in confining himself to the common 
law rules bearing upon the legal position of husband and wife, parent and child, 
infants, and ^ardian and ward, abroo;ated in part though they may be, and in 
dismissing with brief mention the widely varying statutory changes which have 
taken place in the different jurisdictions. 

As a statement of the underlying common law this work is in most respetts 
to be commended. Its clearness of diction and logical development of thought 
are refreshing. It is precisely the kind of book to be read through with profit 
by a person unfamiliar with the subject, but with this caution, that the reader 
must not attribute to it infallibility. The author, unfortunately, has a slight 
tendency to follow too closely the current form of statement rather than to seek 
for the substance of the law. For instance, in treating of the liability of infants 
for necessaries, he lays it down in the old way, that Sie infant is bound by his 
contract for necessaries, and fails to impress the fact that what the infant is 
bound to do is not to fulfill the contract by paying the contract price, but rather 
to pay the fair value of the necessaries. In the same way he speaks on 
paee 65 of the liability of the husband for necessaries propcrlv furnished to the 
wife as founded on the wife's agency for the husband, ana yet concedes on 
page 82 that the usual principles of s^ency are inadequate to explain the law. 
A similar fault is disclosed in his tendency to state moral duty in terms of legal 
obligation. A conspicuous instance is found in the chapter upon the duties of 
parents as to their children, in which the author enumerates as legal duties 
obligations of protection, maintenance, and education, which the common law 
rather commends as good morals than enforces by appropriate process. As to 
the chapter concerning void and voidable acts ot an infant, so much stress is 
laid upon the former that the reviewer feels some doubt whether the inex- 
perienced reader might not be misled into thinking the proportion of void acts 
to voidable far greater than it really is. An unusual omission in the work is 
that of the names of the cases in many citations. Not the least entertaining 
part is the homilv on marriage, beginning on page 1 2, in which the present dav 
tendency toward the fuller independence of woman is somewhat deprecatea. 
Further enumeration of defects, however, might convey a false impression of 
what is in reality a very useful book for the elementary student seeking a 
general knowledge of that branch of the law of which it treats. 

H. LE B. s. 



ISO HARVARD LAW REVIEW, 

A Treatise on the Law of Crimes. By Wm. L. Clark and Wm. L. 
Marshall. Second Edition, by Herschel Bouton LazeU. St. Paul: Keefe- 
Davidson Co. 1905. pp. xxxiv, 906. 8vo. 

The second edition of this successful elementary treatise appears in a single 
lar^e volume, instead of the two smaller volumes of the first edition. This is a 
desirable change, so far as the lawyer's use of the book is concerned ; and it 
is probably quite as convenient for the student. 

Mr. Clark's work has the qualities which make all his books valuable : clear- 
ness and completeness of analysis, lucidity of statement, and good judgment and 
sense of proportion. These qualities are invaluable in a book intended to meet 
the needs of students. The summaries of doctrine printed in heavy-faced type 
as *' principles" are well-made, brief, and clear. Both students and practicing 
lawyers will find the book helpful. 

One must not expect to find here original discussion of difficult problems of 
the criminal law ; nor should one be surprised to find that the inconsistencies 
and blunders of the cases on larceny, for example, appear without any attempt 
to cure or even to point out the errors. A topic which has tried and transcended 
the powers of a Bishop could hardly be elucidated in an elementary treatise. 
We must accept the book for what it is, and be grateful ; and it is a clear and 
useful summary of the law as it is ordinarily administered in court. 

The work of the editor has been merely to bring the authorities down to date. 
The new matter is not so distinguished from the old that one can say how much 
has been added. One useful addition, at any rate, is the references to the cases 
in Professor Mikell's most excellent collection. j. h. b. 



A Manual Relating to the Formation and Management op Mer- 
cantile AND Manufacturing Corporations, with Forms. A Book of 
Massachusetts Law. By George F. Tucker. Second Edition, Revised, 
including Revised Laws, Statutes of 1903-1905, and Massachusetts Re- 
ports, Vol. 187. Boston: Little, Brown, and Company. 1905. pp. xxvii, 
401 . 8vo. 

Official Report of the Universal Congress of Lawyers and Jurists 
held at St. Louis, Missouri, U. S. A., September 28, 29, and 30, 1904, 
under the auspices of The Universal Exposition and The American Bar 
Association. Edited by the Secretary of the Congress. St. Louis : Pub- 
lished by the Executive Committee. 1005. pp. xix, 423. 8vo. 

Corporations. A Study of the Origin and Development of Great Business 
Combinations, and of their Relation to the Authority of the State. By 
John P. Davis. In two volumes. New York and London : G. P. Put- 
nam's Sons. 1905. pp. ix, 318; iii, 295. 8vo. 

International Civil and Commercial Law, as Founded upon Theory, 
Ledslation, and Practice. By F. Meili. Translated and supplemented 
witn additions of American and English law, by Arthur F. Kuhn. New 
York : The Macmillan Company. 1905. pp. xxvii, 559. 8vo. 

Proceedings of the Fourteenth Annual Conference of Commis- 
sioners ON Uniform State Laws, held at St. Louis, Missouri, Sep- 
tember 22, 23, and 24, 1904. Reprinted from the Transactions of the 
American Bar Association for 1904. pp. 193. 8vo. 

A Manual Relating to Special Verdicts and Special Findings by 
Juries. Based on the Decisions of all the States. By Geoi^e B. 
Clementson. St. Paul, Minn. : West Publishing Co. 1905. pp. Ixi, 350. 
8vo. 

A Treatise on the Law of Crimes. By Wm. L. Clark and Wm. L. 
Marshall. Second Edition, by Herschel Bouton LazeU. St. Paul : 
Keefe-Davidson Co. 1905. xxxiv, 906. 8vo. 



HARVARD 

LAW REVIEW. 

VOL. XIX. JANUARY, 1906. NO. 3 

DOMINANT OPINIONS IN ENGLAND DUR- 
ING THE NINETEENTH CENTURY IN 
RELATION TO LEGISLATION AS ILLUS- 
TRATED BY ENGLISH LEGISLATION, OR 
THE ABSENCE OF IT, DURING THAT 
PERIOD. 

PROFESSOR DICEY. Vinerian Professor of English Law, in 
the University of Oxford, has recently published, through 
Messrs. Macmillan & Co., a book with the following title : " The 
Relation between Law and Public Opinion in England during the 
Nineteenth Century." The book is the outcome of a course of lec- 
tures delivered by the author, seven years ago, at the Harvard Law 
School, pursuant to an invitation, accepted by him, as he informs 
us in his preface, to lecture at that School on the History of English 
Law during the Nineteenth Century. The title of the book invites 
inquiry, i. In what sense does the author use the term "law"? 
\As commonly used by lawyers, the word means law as adminis- 
tered by courts of justice in suits between litigating parties, but 
here it is clearly not used in that sense, but in the sense of legisla- 
tion., 2. What does the author mean by "public opinion"? Who 
are the persons whose individual opinions taken in the aggregate 
form that public opinion which the author has in mind ? Are they 
those whose opinions directly control legislation, i. e., the members 
of the House of Commons for the time being? No, clearly not. 
The author, it is believed, would not think of calling the opinions 
of a majority of the members of the House of Commons public 



152 HARVARD LAW REVIEW, 

opinion. Nor would there be any propriety in making the rela- 
tion between the opinions of a majority of the legislators of the 
country and the legislation which they enact a subject of inquiry, 
as legislation is supposed to be the direct expression of the opin- 
ions of those by whom it is enacted. Although, therefore, the 
author not unfrequently uses the term " legislative opinion," it does 
not follow that he uses that term as equivalent to public opinion as 
used in his title-page. Is it the electorate whose opinions in the 
aggregate the author treats as forming public opinion? The an- 
swer to this question is not so clear ; but it seems to me very clear 
that the electorate constitute only a portion of those whose opin- 
ions in the aggregate form public opinion in reference to legisla- 
tion. The electorate differ from the rest of the people only in this, 
namely, that they alone have a voice in the election of members of 
the House of Commons, and consequently they alone have the 
power to express their disapproval of the course taken by a mem- 
ber, for whom they may formally have voted, by refusing to vote 
for his re-election, /. ^., by voting for some one else. But when a 
member has once been elected, he represents those who voted 
against him as much as he does those who voted for him, — he rep- 
resents also all the people of the city, borough, or district for which 
he was elected as much as he does those who had a voice in the 
election, — nay, he represents the entire nation as much as he does 
the city, borough, or district for which he was elected. The elec- 
tors may, indeed, require a candidate to give pledges as a condition 
of their voting for him, and, if he does give pledges, of course he is 
bound in honor to redeem them, but whether he does so or not, 
or whether his course as a legislator is satisfactory or not to those 
who elected him, is a question between him and them only ; it is 
not a question in which any one else has any direct interest 
It seems to be clear, therefore, that the author must be taken to 
have meant by public opinion the opinion of the entire nation, taken 
in the aggregate, in reference to legislation. 

It does not seem to me that the author has been wholly fortunate 
in making the relation between legislation and public opinion the 
title of his treatise. My reasons are, first, that the closeness of that 
relation in England during the nineteenth century is too obvious 
greatly to require elucidation, as the electorate of that country 
cannot be supposed to differ greatly in their political opinions from 
their fellow-subjects ; and no intelligent person requires to be told 
that, whenever the Executive Government finds itself in a minority 



DOMINANT OF/NIONS IN ENGLAND. I S3 

in the House of Commons and believes the reason to be that the 
majority are not in harmony with public opinion, it may dissolve 
Parliament and order the election of a new House of Commons, 
or that, whenever the Opposition in the House of Commons finds 
itself in a majority, it may compel the Executive Government to 
resign, and so give place to the Opposition, unless the former is 
prepared to take the responsibility of dissolving Parliament; and, 
secondly, that public opinion, rather than the relation between 
legislation and public opinion, is in truth the subject of the book. 
It may be conjectured, moreover, that the author, in preparing his 
lectures, felt himself trammelled by the terms of the invitation which 
he had received, and that he was influenced by that circumstance in 
giving a title, first, to his lectures, and then to his book. If so, it is 
a pity, as the title, coupled with the preface, may convey to some 
persons who are not lawyers the impression that the book is not 
meant for them, and so induce them to lay it down before they 
have ascertained for themselves its true character. In truth, the 
book is in no sense a law book,^ and some of the most enthusiastic 
encomiums of it that I have heard have come fi'om gentlemen 
who have never opened a law book. 

Professor Dicey declares, in his opening lecture, that legislation 
in England during the nineteenth century was more under the con- 
trol of public opinion than in any other country, not excepting the 
United States. The only reason that he gives, however, for not 
excepting the United States is that in that country restrictions are 
imposed on legislators by the constitutions, both of the United 
States, and of the several states.^ In regard to this, it may be ob- 
served, first, that constitutions can exert only a negative influence 
on legislation ; secondly, that, according to Professor Dicey, the 
true sovereignty in England resides in those who, for the time 
being, hold the elective franchise, and therefore under the Reform 
Act of 1832, it resided in the ten-pound householders, while at the 
present moment it resides in the aggregate of all the householders 
in the country. If this be so. it seems to follow that our constitu- 
tions create one important difference between England and this 
country which has not attracted much attention ; for here, though 
it may perhaps be said that the sovereignty resides in those who, 
for the time being, hold the elective franchise, yet it lies entirely 

^ Lecture XI is, however, a partial exception to this statement, the subject of that 
lecture being " Judicial Legislation/* 
• Dicey 9. 



154 HARVARD LAW REVIEW. 

dormant except when the business before them is the election of 
representatives to make a new constitution, i. ^., delegates to a 
constitutional convention; or when they are called upon to vote 
upon a constitution already framed and submitted to them for rati- 
fication or rejection. It may be added that the only sovereignty 
that resides in the people of the United States, in the aggregate, is 
that portion of sovereignty which has been delegated to them by 
the people of the several states respectively under the Constitution 
of the United States. There is one question in this connection as 
to which we seem to be much at sea, namely, whether a constitu- 
tion which makes no provision for its own amendment or change 
can be amended or changed except by a revolutionary act, and 
consequently whether a constitution which does make provision 
for its own amendment or change can be amended or changed 
without reference to such provision except by a revolutionary act 
Certain it is that at all ordinary elections held under our state consti- 
tutions the electors exercise only a delegated power. The limitations 
imposed upon the legislative power by our constitutions do not, 
however, constitute the only reason why public opinion exerts less 
control over legislation here than in England, especially over fed- 
eral legislation, for, first, the United States Senate, while it is, like 
the House of Lords, a permanent body, and each member is elected 
for six years, yet unlike the House of Lords it exerts a much 
greater influence over legislation than does the lower House; sec- 
ondly, our national legislators are frequently elected a long time 
before they take their seats, and hence may be supposed to repre- 
sent the public opinion of the time when they were elected rather 
than that of the time when they take their seats; thirdly, our 
United States Senators are elected by the state legislatures, and 
hence they are for that reason much less amenable to public 
opinion than if they were elected directly by the people of the 
several states respectively ; fourthly, our national legislators come 
from forty-five diff'erent states, and yet no one of them can be 
fairly said to reflect any other public opinion than that of his own 
state; and, lastly, our legislators, both state and national, when 
once elected, are perfectly secure of their seats, until the term for 
which they were elected expires by its own limitation. 

It seems to me, also, that there is a reason why the House 
of Commons is not likely to reflect the opinion of the country 
at large as speedily or as perfectly as Professor Dicey seems to 
suppose it will, namely, in the fact that all Parliamentary elections 



DOMINANT OPINIONS IN ENGLAND. 155 

are locaf, an owner or occupier of a house being entitled as such 
to vote only for the member or members to which the city, 
borough, or division of a county, in which the house is situated, 
is entitled ; and though the elections generally come near together 
in point of time, yet they are wholly independent of each other. 
Doubtless there have been measures in the past which aroused the 
electors all over the country, or at least very generally, such as 
the Reform Bill of 1832, or the bill for the repeal of the Corn 
Laws in 1846, and doubtless there will be such measures in the 
future, but they are likely to be rare. 

Before Professor Dicey reaches the question what were the 
dominant currents of public opinion in England during the nine- 
teenth century as to legislation, he raises the question whether 
those which were dominant during the last two-thirds of the cen^ 
tury will each admit of the same explanation, namely,(the advance 
of democracy during that period [^and to that question his answer 
is a very decisive negative, his opinion being that there is no a 
priori reason why a democracy should advocate one kind of legis- 
lation rather than another; and he further declares that the house- 1 
holders have thus far shown themselves conservative.^ It would be \ 
a great mistake, however, for /an American reader to infer that 
democracy in England, under household suffrage, is the same as, 
or even much resembles, democracy in this country, or that it 
would be the same, if household suffrage should, in England, give 
way to universal or manhood suffrage;, and the reason is that elec- 
tors in England, as such, have not, either directly or indirectly, any 
voice in or any control over the Executive Government. English 
democracy begins and ends with a right to vote for members o{ 
Parliament. Once in seven years, or oftener in case a Parliament 
is dissolved before the expiration of the seven years for which it 
was elected, every elector is entitled to vote for one or more mem- 
bers of a new Parliament, and the right so to vote is what English 
working-men were struggling for from the middle of the nineteenth 
century onward. Consequently,' the only object that an English 
elector, as such, can have in voting, or in seeking to influence the 
votes of others, is thereby to influence legislation, — not to obtain 
office either for himself or for his friends. Nor is a boss a possi- 
MntyTirEnglTsh national politics, whether in or out of office, unless, 
indeed, a man shall appear who combines the qualities of a boss 

1 Dicey 48-61. 



I $6 HAI^VARD LAW REVIEW. 

with those of a leader of the House of Commons. It is not sur- 
prising, therefore, that Professor Dicey should declare the English 
householder to be conservative in politics. What inducement has 
he to be otherwise ? 

Having disposed of the question whether the diflferent currents 
of public opinion as to legislation which were dominant in England 
during the last two-thirds of the nineteenth century were merely 
different degrees of democratic opinion, Professor Dicey proceeds 
to inquire what were the opinions which were dominant during the 
century, and to give an account of them; and he declares that 
each third of the century had a dominant current of opinion 
peculiar to itself; that the dominant current of opinion peculiar to 
the first third of the century was a combination of the optimism 
of the time of Blackstone and that dread of innovation and revolu- 
tion which had been inspired in England by the French Revolution.* 
This opinion ceased to be dominant on the passing of the Reform 
Bill of 1832, and Professor Dicey says it would have ceased to be 
dominant several years sooner but for the fact that the unreformed 
House of Commons was not sufficiently responsive to public 
opinion. Professor Dicey calls the period during which it was 
dominant the period of quiescence or stagnation, or the period of 
old toryism, as distinguished from the new toryism, which calls 
itself conservatism. Of course the legislative characteristic of the 
period was the absence of legislation. 

On the passing of the Reform Bill of 1832 the period of quies- 
cence gave place to the period which Professor Dicey calls the 
period of individualism, or Benthamism, or of Benthamite liberalisnL* 
It was called the period of individualism because, during that 
period, the leading aim of legislation was to secure to every person 
the greatest practicable amount of individual freedom, and, on the 
other hand, to impose upon every one the sole responsibility of 
taking care of himself. Why was it also called Benthamism? 
Because the opinion which it represented was chiefly created by 
Bentham and his disciples, and because Bentham laid down and 
advocated these two propositions, namely: first, that the aim of 
legislation should be to secure the greatest amount of happiness 
to the greatest number of persons, or, in other words, to maximize 
pleasure and minimize pain; and, secondly, that every person 
must be assumed to be the best judge of his own happiness, or of 

1 Dicey 62-63. * Ibid. 63-64. 



DOMINANT OPINIONS IN ENGLAND. 1 57 

what will give to him the most pleasure and the least pain. Why 
was it also called liberalism ? Because it was the view of legisla- 
tion advocated by the now dominant liberal party, which had taken 
the place of the old whig party. 

As the doctrine of individualism is also the doctrine of laissez- 
faire^ how does it happen that the period of individualism, instead 
of being, like the preceding period, one of legislative quiescence, 
was a period of great legislative activity? Because at the begin- 
ning of the period inequality everywhere prevailed, privilege for 
the few and restraint upon the many being the rule ; and hence a 
period of legislative activity was necessary in order to get rid 
alike of privilege and restraint, and to substitute equality for 
inequality. One of the things upon which individualism especially 
insisted was freedom of contract, and the substitution of contract 
for status ; and yet Professor Dicey shows that there is a point 
beyond which freedom of contract favors not freedom, but slavery, 
and he asks pertinently whether a man shall be free to make a 
contract which will deprive him of freedom; also whether an 
unlimited number of men should be at liberty to form themselves 
into an association, for example, a trades-union, and bind them- 
selves respectively, /. ^., each to all the others, to act in accordance ' 
with the decision of a majority of the members; and I understand 
Professor Dicey's opinion to be in the negative, or, at least, that 
the doctrine of individual freedom of contract does not properly, 
extend to such a case.^ ; 

Professor Dicey is of opinion that individualism ceased to be 
dominant at about the beginning of the last third of the century, 
and then gave place to what he calls collectivism, and sometimes 
socialism. With him, however, the term ** collectivism " seems 
scarcely to mean more than o^/i-individualism, though the term 
would seem to have at least this affirmative meaning, that it favors 
the interference of the state in behalf of some persons or classes, 
and, therefore, at the expense of others. How, then, does the state 
of things which it favors differ from the state of things which , 
existed during the first third of the century? Its advocates will 
answer, with much emphasis, that collectivism favors the interfer- 
ence of the state in behalf of the poor and the weak, and at the 
expense of the rich and the strong, while in the first third of the 
century the interference was in behalf of the rich and the strong, 
and at the expense of the poor and the weak. 

1 Dicey i^t) et seg. 



IS8 HARVARD LAW REVIEIV. 

A conspicuous and most interesting feature of the book is the 
manner in which the author brings out the fact that a dominant 
current of public opinion and also one or more counter-currents 
commonly exist side by side, the latter constantly opposing and 
modifying, in a greater or less degree, the action of the former. 
Thus, during the entire period of old toryism, there was a counter- 
current of individualism, which was constantly growing and increas- 
ing in strength ; but when at length it had become strong enough 
to do battle successfully with its adversary in the open, it found 
the latter intrenched behind an unreformed House of Commons ; 
and, therefore, the first task to which it must set itself was the 
reform of that House ; and this gives the author an opportunity to 
show the condition that England was in, in respect to representa- 
tion, during the first third of the century, — an opportunity of 
which he most effectively avails himself.^ 

It would ill become an American to speak flippantly of the 
unreformed House of Commons, — the venerable mother of all 
representative assemblies. There had never been any attempt to 
make such a distribution of seats in the House of Commons as 
would give to every elector an equal voice in the legislation of the 
country ; nor could such a distribution have been made with any 
approach to accuracy prior to 1801, as there had been no enume- 
ration of the population prior to that time. All that had been 
attempted, therefore, had been to give every important interest a 
representation, so that it might be sure of a hearing in Parliament. 
Nor had it been foreseen that time might bring a great increase or 
a great shifting of population, and therefore no provision had 
been made for either ; and hence the number, as well as the dis- 
tribution of seats was fixed and permanent, and no change could 
be made in either without an Act of Parliament Moreover, as no 
change could be made in either, except at the expense of existing 
interests, it was not to be supposed that the latter would permit it 
to be made without a struggle to prevent it. In 1832, however, 
four decennial enumerations of the population had been made, and 
the population of England and Wales had, between 1801 and 1831, 
increased from eight millions to thirteen millions. The country, 
moreover, had recently changed from an agricultural to a manu- 
facturing country, and there had been in consequence great shift- 
ings of population, particularly from the South and Southwest to 
the North. Large manufacturing cities had suddenly sprung up 

1 Dicev iix-ixf. 



DOMINANT OPINIONS IN ENGLAND. 159 

in the North, and Liverpool had taken the place of Bristol as the 
second seaport of the kingdom. Meantime, what was the state of 
the representation? Professor Dicey answers that of a total num- 
ber of 548 members of the House of Commons, as that House 
existed until the union with Ireland, 200 were elected by less than 
7,000 electors, and that while the County of Cornwall had 42 
members, Birmingham and Manchester were wholly unrepre- 
sented.^ Yet it should not be forgotten that it was in the unre-1 
formed House of Commons that the two Pitts, Burke, and Fox; 
made all their great Parliamentary speeches, and that Burke; 
represented a " rotten borough " during twenty-three of the twenty- 
nine years of his Parliamentary career.* 

When, upon the passing of the Reform Bill of 1832, individual- 
ism became the dominant public opinion, the previously domi- 
nant toryism became a counter-current, and(^ almost immediately 
hostility to laissez-faire also began to show itself as a rising power. . 
Professor Dicey, indeed, quotes ' very strong expressions of opin- 
ion to that effect by Southey as early as 1829, and by Dr. Arnold 
and Carlyle, respectively, in 1838 and 1839. Southey says: 
"Moral evils are of [man's] own making; and undoubtedly the 
greater part of them may be prevented, though it is only in Para- 
guay (the most imperfect of Utopias) that any attempt at preven- 
tion has been carried into effect." ^ Dr. Arnold, speaking of the 
neglect to provide a proper position in the state for the manufac- 
turing population, says : " This neglect is encouraged by one of 
the falsest maxims which ever pandered to human selfishness under 

1 Dicey 115. 

* Daring his first nine years in Parliament, from 1766 to 1774, both inclusive, he sat 
for Lord Vemey's borough of Wendover. During the next six years he sat for the 
dty of Bristol, and during the remaining fourteen years he sat for the Marquis of 
Rockingham's borough of Malton. 

• Dicey 214-216. 

^ Professor Dicey quotes from Macaulay the following description of Southey's 
theory of the functions of government : " He conceives that the business of the magis- 
trate b not merely to see that the persons and property of the people are secure from 
attack, but that he ought to be a jack-of-all-trades, — architect, engineer, schoolmaster, 
merchant, theologian, a Lady Bountiful in every parish, a Paul Pry in every house, 
spying, eaves-dropping, relieving, admonishing, spending our money for us, and choos- 
ing our opinions for us. His principle is, if we understand it rightly, that no man can 
do anything so well for himself as his rulers, be they who they may, can do it for him, 
and that a government approaches nearer and nearer to perfection, in proportion as it 
interferes more and more with the habits and notions of individuals. He seems to be 
fully convinced that it is in the power of government to relieve all the distresses under 
which the lower orders labor." (Dicey 214, n. i.) 



l6o HARVARD LAW REVIEW. 

the name of political wisdom — I mean the maxim that civil soci- 
ety ought to leave its members alone, each to look after their 
several interests, provided they do not employ direct fraud or 
force against their neighbor. That is, knowing full well that these 
are not equal in natural powers, — and that still less have they 
ever within historical memory started with equal artificial advan- 
tages, knowing also that power of every sort has a tendency to 
increase itself, we stand by and let this most unequal race take its 
course, forgetting that the very name of society implies that it 
shall not be a mere race, but that its object is to provide for the 
common good of all, by restraining the power of the strong and 
protecting the helplessness of the weak." Carlyle says: "That 
the arrangements of good and ill success in this perplexed scram- 
ble of a world, which a blind goddess was always thought to pre- 
side over, are in fact the work of a seeing goddess or god, and 
require only not to be meddled with : what stretch of heroic fac- 
ulty or inspiration of genius was needed to teach one that? To 
button your pockets and stand still is no complex recipe. Laissez 
faire, laissez passer/ Whatever goes on, ought it not to go on? 
. . . Such at bottom seems to be the chief social principle, if 
principle it have, which the Poor Law Amendment Act has the 
merit of courageously asserting, in opposition to many things. A 
chief social principle which this present writer, for one, will by no 
manner of means believe in, but pronounce at all fit times to be 
false, heretical, and damnable, if ever aught was." Professor Dicey 
adds that these "three men of genius agreed in nothing but in 
their common distrust of laissez-faire, and in their conviction that 
some great exertion of the authority of the state was needed for 
the cure of the diseases which afflicted the commonwealth." This 
conviction was shared in by an ever increasing number of persons 
for the next thirty years, or until about 1870, when it seems to 
have become dominant. By what means was individualism thus 
overthrown, and collectivism enthroned in its place? A short an- 
swer seems to be that it was by means of an alliance between tory- 
ism and the working-classes, as old toryism had been overthrown in 
1832 by an alliance between the Benthamites and the whigs. / Nor 
was an alliance between the most aristocratic and the mosFclemo- 
cratic class at all surprising. The Benthamites belonged as a rule 
to the great middle class, which received a great accession of 
strength from those on whom the electoral franchise was conferred 
by the Reform Bill of 1832, which was passed wholly in the inter- 



DOMINANT OPINIONS IN ENGLAND. l6i 

est of the middle class. It was not to be supposed, therefore, that 
working-men would feel particularly friendly to those next above 
them, and who were in the full enjoyment of political rights from 
which they themselves were wholly excluded. (^Moreover, the em- 
ployers of labor belonged to the middle class, and they, in respect 
to the working-classes, represented capital, as the working-classes 
represented labor, and the relation between capital and labor 
seems seldom to be more friendly than that of an armed truce. ' 
Between tories and working-men, on the other hand, there existed 
no relation calculated to excite hostility, and the former were too 
far above the latter to excite in them a feeling of jealousy. Be- 
sides, neither the tories nor the working-men had much to hope for 
politically, except through an alliance with each other. The one 
political object of the tories was to overthrow the liberals and 
reinstate themselves in power, and they had but a slim prospect 
of accomplishing this object, except with the aid of the working- 
men. The latter, moreover, had little to hope for from the liberals, 
who did not need their assistance, and whose very creed precluded 
them from legislating in favor of one class at the expense of 
another, and, therefore, precluded them from legislating in favor 
of working-men at the expense of capital. 

It was not, however, till near the beginning of the last third of 
the century that any conscious alliance between tories and work- 
ing-men was brought about, though there was an unconscious 
alliance between working-men and a portion of the tory party 
during nearly the whole of the second third of the century, or at 
least the latter were very earnest workers in the interest of the 
former.^ What was the field in which they thus worked? In 
the field of legislation in the interest of factory operatives and at 
the expense of manufacturers. This legislation constituted what 
Professor Dicey calls the factory movement, and his account of it 
forms one of the most brilliant portions of his book.^ He assures 
us that this movement originated wholly with philanthropic tories, 
and that it was under their guidance to the end. To show how 
rapidly the movement grew in strength, it is only necessary to say 
that as early as 1847, only a year after Benthamism had achieved 
its crowning victory in the repeal of the Corn Laws, the friends of 
the factory movement were strong enough to carry the Ten Hours 
Bill,^ to defeat which its enemies had marshalled all their strength.* 

1 Dicey 219-239. * 10 & 11 Vict, c 29. 

' Professor Dicey quotes from Lord Shaftesbury's private diary a passage from 



l62 HARVARD LAW REVIEW. 

To show also how comprehensive the movement was, and how 
great a share it had in the victories of collectivism, it may be added 
that it finally culminated in the passing of the labor code of 1901.^ 
If the work done by the tory leaders of this movement had not 
stirred the hearts of the working-men on whose behalf it was 
undertaken and carried through, they would have been ingrates 
indeed. If any reader of this article should still be in doubt as to 
whether he shall read Professor Dicey's book, let him read the 
" characters," as drawn by Professor Dicey, of the leaders of this 
movement, namely, Robert Southey, Richard Oastler, Michael 
Sadler, and Lord Shaftesbury.* 

At length, Disraeli had the sagacity to educate his party into 
the formation of an open alliance with working-men. Professor 
Dicey says the collapse of the Southern Confederacy formed an era 
in the advance of democracy in England ; that while the aristoc- 
racy and wealth of England had given their moral support to the 
"lost cause," the working-men had recognized in the War of 
Secession a contest between democracy and oligarchy, had pa- 
tiently endured the hardships of the cotton famine which it caused, 
and calmly and confidently awaited its outcome ; that the working- 
men of England consequently shared, to some extent, in the vic- 
tory won by democracy in America, and found themselves at the 
close of the war in a much stronger position politically than ever 
before ; and that it was plain to all that the elective franchise must 
be further extended. Accordingly, at the next session of Parlia- 
ment, Gladstone brought in a reform bill, but after a long contin- 
ued and very able debate, it was defeated; the liberal ministry 
resigned, and the conservative party came into power. At the 
next session of Parliament another reform bill was brought in 
by Disraeli, and carried, which conferred the elective franchise 
upon the artisans of towns ; and this Act was followed by another 
in 1884, which conferred it upon all householders, and so upon 
country laborers. 

It must not be supposed, however, that collectivism has ad- 
vanced itself by the same method as individualism, nor that it has 
produced the same effect upon the conservative party that indi- 

which it appears that, in carrying through the Ten Hours Bill, he encountered nothing 
but hostility from Sir Robert Peel, O'Connell, Gladstone, Brougham, Bright, Cobden, 
and Miss Martineau. (Dicey 233 ) 

1 Factory and Workshop Act, 1901, i Edw. VII, c. 22. 

■ Dicey 223-231. 



DOMINANT OPINIONS IN ENGLAND. 163 

vidualism did upon the whig party. ' Individualism was a doctrine 
and a theory ; was loudly proclaimed and aggressive. Collectivism, 
on the other hand, is not a theory, but a practice.^ It is an influ- 
ence which is not openly acknowledged. Its very name indicates 
this, i. e,, it is used because of its vagueness, because of the little 
meaning that it conveys, and because of its consequent harmless- 
ness. In_shortj_ it is used in order to avoid using " socialism/' So- 
cialism is, indeed, a theory, but it is one with which no practical 
politician would, in England, be willing to identify himself. It has 
worked its way silently and is known only by its fruits. Individ- 
ualism, or Benthamism, may almost be said to have swallowed up 
the old whig party, and it certainly gave it a new name. It had, 
like the tory party, been living upon its traditions, but Benthamism 
infused into it new life and vigor. Collectivism, on the other 
hand, has affected the conservative party only by increasing its 
numbers, and its consequent political strength. Ostensibly, at 
least, the latter remains, in other respects, what it was before col- 
lectivism was heard of. In short, the conservative party has never 
adopted socialism as part of its creed, as the whig party did indi- 
vidualism. It has courted the working-classes, but it has done so, 
not by adopting their theories, but by making concessions to them, 
and by conferring upon them great practical beneflts, or at least, 
what the latter so regarded. It is to be remembered also that 
paternalism in government was always a part of the tory creed. 

I have shown the manner in which Professor Dicey combines 
the treatment of dominant public opinion as to legislation with the 
treatment of counter-currents on the same subject. To make his 
view complete, however, he finds it necessary to consider another 
species of subordinate currents of opinion, namely, cross-currents. 
What is the distinction which Professor Dicey makes between 
counter-currents and cross-currents? A counter-current is always 
in direct opposition to the existing dominant opinion. It sometimes 
consists of an opinion which has previously been dominant, but 
which, having ceased to be dominant, has become a counter-current* 
Such was old toryism after the passing of the Reform Bill of i833» 
It may also consist of some new opinion in opposition to the 
dominant opinion, and which the latter has caused to spring up. 
Such was the collectivism which represented hostility to indi- 
vidualism and laissez-faire during the dominance of the latter. 
A cross-current, on the other hand, is one which is independent 
alike of the dominant opinion, and also of any counter-currents 



l64 HARVARD LAW REVIEW. 

which may exist. One of its characteristics must, it seems, always 
be that it extends to a part only of the entire field of legislation ; 
for if it extended to the whole field it would necessarily become a 
counter-current. It seems also that it must, in order to make 
itself felt, substantially control, or at least modify, that portion of 
legislation to which it extends. While, therefore, a cross-current 
of opinion generally extends only to such legislation as affects 
directly a single class of the people, it must, in order to be success- 
ful, enlist the sympathy and support of a large portion of the 
entire nation. And such was the current of opinion which Profes- 
sor Dicey selects for the illustration of the nature and working of 
cross-currents of opinion, namely, the cross-current of clerical or 
ecclesiastical opinion, u e., the opinion which controlled, or greatly 
modified, legislation affecting the national Church during the last 
two-thirds of the nineteenth century. To this subject he devotes 
substantially the whole of his tenth lecture, and the work is most 
admirably done. He begins by showing that immediately after the 
passing of the Reform Bill of 1832 the opinion was well-nigh uni- 
versal that the Church was in great peril. "The policy of the 
popular leaders, whether whigs or Benthamites, was essentially 
secular and anti-clerical. The whigs had always been the cool 
friends, if not the foes, of the clergy, and had found their most 
constant adherents among Dissenters. The doctrines of Bentham 
clearly pointed towards disestablishment In 1832 popular feeling 
identified zeal for the Church with opposition to reform, and 
considered bishops and parsons the natural allies of borough- 
mongers and tories. At the moment when the vast majority of 
the electors demanded Parliamentary reform with passionate enthu- 
siasm, no class was the object of more odium than the bench of 
Bishops. Proposals were once and again brought before Parlia- 
ment to expel them from the House of Lords. Whatever, again, 
might be the other effects of the Reform Act, it assuredly gave 
new power to what was then termed the Dissenting interest ; at the 
meeting of the first reformed Parliament it seemed for a moment 
possible that Dissenters might exercise political predominance, 
and the rule of Nonconformists could mean nothing less than a 
revolution in the position of the Church.^ ... In these circum- 
stances observers of the most different characters and of opposite 
opinions felt assured that the Church was in danger. In 1833 

* Dicey 312. 



DOMINANT OPINIONS IN ENGLAND, 16$ 

Macaulay wrote that in case the House of Lords should venture on 
a vital matter to oppose the Ministry, he 'would not give six- 
pence for a coronet, or a penny for a mitre.* ^ Between 1830 and 
1836, then, it was assuredly no unreasonable forecast that the 
future of the Church of England might be summed up in the 
formula, * either comprehension or disestablishment ' ; the Church 
must, men thought, either embrace within its limits the whole or 
nearly the whole of the nation, or cease to be the National Church.* 
The experience of more than seventy years has given the lie 
to reasonable anticipations. The country has, since 1832, been 
represented first by a middle-class Parliament, and next by a more 
or less democratic Parliament, yet has not sanctioned either com- 
prehension or disestablishment In all ecclesiastical matters. Eng- 
lishmen have favored a policy of conservatism combined with 
concession. Conservatism has here meant deference for the con- 
victions, sentiments, or prejudices of churchmen, whenever respect 
for ecclesiastical feeling did not cause palpable inconvenience to 
laymen, or was not inconsistent with obedience to the clearly 
expressed will of the nation. Concession has meant readiness 
to sacrifice the privileges, or defy the principles, dear to church- 
men whenever the maintenance thereof was inconsistent with the 
abolition of patent abuses, the removal of grievances, or the 
carrying out of reforms demanded by classes sufficiently powerful 
to represent the voice or to command the acquiescence of the 
country. 

" What have been the circumstances that have given rise to this 
unforeseen and apparently paradoxical policy of conservatism and 
concession? To put the same enquiry in another shape: what 
have been the conditions of opinion which, in the sphere of eccle- 
siastical legislation, have prevented the dominant liberalism of the 
day from acting with anything like its full force, and have in many 
instances rendered it subordinate to the strong cross-current of 
clerical or Church opinion? 

" These circumstances or conditions were, speaking broadly, the 
absence of any definite programme of Church reform commanding 
popular support ; and the unsuspected strength of the hold pos- 
sessed by the Church of England on the affections of the nation. 

"The whigs certainly failed to produce any clear scheme of 
ecclesiastical reform.* . . . Nor did the Benthamites stand in a 

» Dicey 314. ■ Ibid, 315. • Ibid. 316. 



I66 HARVARD LAW REVIEW. 

Stronger position than the whigs. The philosophic radicals held 
all ecclesiastical establishments to be at best of dubious utility, and 
expected them to vanish with the progress of enlightenment In all 
matters regarding the Church they were utterly at sea. They were 
stone-blind to the real condition of opinion in England.^ . . . 
In ecclesiastical affairs they possessed neither insight nor foresight; 
they did not understand the England in which they lived, they did 
not foresee the England of the immediate future.* . . . 

" The Church establishment, further, if in 1832 it was strong both 
in its own inherent strength and in the weakness of its opponents, 
assuredly obtained, for some time at any rate, a great increase of 
power from the High Church movement.^ ... It was a most 
successful effort to impress upon churchmen, and especially upon 
clergymen, the belief that the very existence of the Established 
Church was in peril, to inspire clerical convictions with new life, 
and to place Church opinion in direct opposition to the liberalism 
which undermined the basis of ecclesiastical authority.^ . . . The 
High Church movement reinvigorated the faith of the clergy in 
their own high authority ; it disciplined them for political no less 
than for ecclesiastical conflicts.^ . . . Newman and his allies cre- 
ated such a Church party as had not existed in England since the 
days of the Stuarts.' . . . 

" Gradually the necessary, or at any rate the easiest, line of action 
became clear. The fundamentals of the establishment must be 
left untouched ; patent abuses which shocked the dominant opinion 
of the day, or grievances which irritated powerful classes, must be 
removed, but even the most salutary reforms might be long 
delayed and tempered or curtailed out of deference to the princi- 
ples or the sentiment of churchmen. Here we have the policy of 
conservatism combined with concession which has coloured the 
whole of modern ecclesiastical legislation."^ 

Here I must take leave of this fascinating book. It is a remark- 
able book in many ways. The author says in his preface : " It 
cannot claim to be a work of research ; it is rather a work of infer- 
ence or reflection." I should say, however, that the author has 
ransacked English literature for the most apposite and striking 
proofs and illustrations of his inferences and reflections. In read- 
ing, too, his " characters '1 of public men, whom he can have known 

1 Dicey 320. * Ibid. 322. * Rnd, 327. * Ihid. 328. 

» md, 392. • Ibid, 330. » Ibid, 333. 



DOMINANT OPINIONS IN ENGLAND. 167 

only through their writings or through the testimony of others, one 
wonders if he has spent his life in studying these men. He claims 
no merit for his facts, and yet his pages are crowded with facts as 
well as reflections of the most interesting and instructive character. 
Any American who wishes to know the England of the nineteenth 
century as if he were a native will find in Professor Dicey, who is 
a worthy successor of Blackstone, an incomparable instructor. 

C. C. Langdell. 
Cambuogx, December, 1905. 



I68 HARVARD LAW REVIEW. 



CONGRESS, AND THE REGULATION OF 
CORPORATIONS. 

A MONG the powers which the Constitution vests in Congress, 
-^^ was one whose grant few opposed and from which no appre- 
hensions were entertained.^ This was " the simple power of regu- 
lating trade."* At a time when the powers given to Congress 
were " extorted from the grinding necessity of a reluctant people " * 
this power was given by "the common consent of America."* 
Persons who opposed every other means to strengthen Congress 
consented to this grant. " Why not/' it was asked, " give Con- 
gress power only to regulate trade? " * 

For the greater part of the first century under the Constitution, 
the construction placed upon the power thus granted, was such as 
to justify this attitude. The power was not of an absorbing nature, 
nor one whose possession enabled Congress to invade either the 
jurisdiction of the states or the personal liberty of individuals. 

Recently, however, the power seems wholly to have changed its 
character. The right to engage in foreign and interstate com- 
merce, it is now said, is derived solely from the federal government. 
All the industrial and transportation interests of the country — 
except a few of the smallest — are, therefore, it is said, within 
federal control. 

This new construction of the commerce clause is advanced, not 
as a necessary result of explicit constitutional provisions, but, 
frankly, to justify specific legislation — the regulation of corpora- 
tions — which the President has for some time advocated, and now 
again in his annual message urges upon Congress. The first 
popular statement of the argument by which such legislation is to 
be supported was made by Mr. Knox, when Attorney-General. 

Admitting, apparently, as is unavoidable, that the manufacture 
and production of articles of commerce are within state jurisdic- 

^ Federalist, No. 45. 

■ Speech of William Symmes in Convention of Massachusetts, 2 Elliot Deb. 7a 

• See Von Hoist, Const. Hist. 1750-1832, p. 63. 

^ Speech of Robert Livingston in Convention of New York. 2 Elliot Deb. 214. 

ft Speech of Gen. Thompson in Convention of Massachusetts, 2 Elliot Deb. 8a 



CONGRESS, AND REGULATION OF CORPORATIONS, 1 69 

tion, as is also the creation of corporations, determination of amount 
of capital, publicity of operation, etc., Mr. Knox argued that Con- 
gress may " deny to a corporation, whose life it cannot reach, the 
privilege of engaging in interstate commerce, except upon such 
terms as Congress may prescribe to protect that commerce from 
restraint. Such a regulation," he said, ** would operate directly 
upon commerce, and only indirectly upon the instrumentalities 
and operations of production." ^ 

In other words, then, the argument is that Congress has uncon- 
trolled power to tax, regulate, or even to prohibit interstate com- 
merce, and that it may use this power to accomplish results which 
are wholly beyond its jurisdiction. 

If these two views of the Constitution represented merely the 
doctrines of present and opposing schools of constitutional con- 
struction, such a difference of opinion upon fundamental questions 
would still be unfortunate. If, however, this difference be not so 
much between schools as between present and past, if it mark a 
fundamental change in the national conception of the Constitution 
and in the spirit of its administration, the significance of the policy 
toward which the country is moving becomes apparent; for impor- 
tant as undoubtedly are the economic questions whose agitation 
has given rise to new constitutional doctrines, the preservation of 
the Constitution is more important still. "There is one point," 
Mr. Lecky said, " on which all the best observers in America, 
whether they admire or dislike democracy, seem agreed. It is, 
that it is absolutely essential to its safe working that there should 
be a written constitution, securing property and contract, placing 
serious obstacles in the way of organic changes, restricting the 
power of majorities, and preventing outbursts of mere temporary 
discontent, and mere casual coalitions from overthrowing the main 
pillars of the State. In America, such safeguards are largely and 
skilfully provided, and to this fact America mainly owes her 
stability." » 

Unfortunately there seems to be a growing impatience with 
these very safeguards ; a belief that the Constitution is not in all 
respects adequate to existing conditions, and that new powers 

1 Speech at Pittsburg, Oct. 14, 1902; copied in 36 Cong. Rec. 412. See also 
first annual report of Commissioner of Corporations ; Democratic National Platform, 
1904 ; Annual Report of Secretary Metcalf of Department of Commerce and Labor, 
December, 1905. 

• Democracy and Liberty, Vol. L p. 136. 



I/O HARVARD LAW REVIEW, 

should be assumed by and supported in the federal government.^ 
The statement of this proposition is probably its best answer, for 
there is no general desire to question the supremacy of the Con- 
stitution, either directly or by constructions which are recognized 
as unsound. It is still true, as Jefferson said, that to take a single 
step beyond the powers which the Constitution has drawn around 
Congress " is to take possession of a boundless field of power no 
longer susceptible of any definition." ' This congressional suprem- 
acy is not advocated on any hand, nor is it sought to impose the 
ultimate authority upon Congress and the Supreme Court to- 
gether. Participation in such a partnership is, in a democratic 
government, wholly incompatible with life tenure of office and 
sooner or later must destroy the authority of the judiciary. 

Rousseau said that popular government, more than any other, 
" most strongly and constantly tends to change its form, and there 
is no government, therefore, which demands more courage and 
vigilance for its maintenance."^ It is for this reason that the 
Court was established, — not to permit change, but to resist un- 
constitutional change. The importance and difficulty of its posi- 
tion thus appear, for upon the Court ultimately rests the pressure 
of the constantly increasing demand for change, and from its 
members the maintenance of the Constitution demands an ever 
increasing courage and vigilance. 

The principal evils of corporate management which it is said 
demand federal legislation are those which result from over-capi- 
talization — " watering of stock " — and secrecy of operation and 
accounts. These matters are admittedly within state jurisdiction 
and beyond federal control. There is nothing new in the sug- 
gestion that Congress should undertake to legislate in this field.^ 

^ Even as conaervative a lawyer as Judge Cooley at one time entertained this view. 
See " Michigan/' American Commonwealth Series 346. But he later changed his 
opinion. See '* Written and Prescriptive Constitutions,*' 2 Harv. L. Rev. 541. On 
the general subject see '* The Elasticity of the Constitution," by Arthur W. Machen, 
Jr., 14 Harv. L. Rev. 200. 

> Opinion on U. S. Bank bill. 

• Social Contract, Book III., Ch. IV. 

* " When the committee have been asked to remedy other evils, such as the watering 
of stock as a pretext of levying additional tribute upon the people, we have had to 
meet the friends of such propositions as that with the statement that we have no 
power, however much we sympathize with them, to take hold of these corporations and 
deal with them as such, but our powers are limited alone to the regulation of commerce 
among the States." John H. Reagan, of Texas, in House of RepresenUtives, Jan. 5, 
188 1, Cong. Rec, 46th Cong., 3d Sess., 11 Cong. Rec., Part I. p. 364. 



CONGRESS, AND REGULATION OF CORPORATIONS. I /I 

The novel feature about the present situation is that responsible 
officers of government now urge Congress indirectly to assume 
control of these matters by denying or taxing interstate transpor- 
tation to all corporations failing to conform to such standards as 
Congress may establish. 

In considering the constitutionality of this legislation it is neces- 
sary first to review the history of the development of federal power 
under the commerce clause. Congress has extended its commer- 
cial powers into fields over which the framers of the Constitution 
did not intend that it should have jurisdiction. This new jurisdic- 
tion being taken, not granted, the question of its extent can be 
determined only by reference to the power originally granted and 
the history of its development. Otherwise, unless limitations upon 
Congress, imposed under different conditions, may, in a sense 
by accident, be found to operate in these new fields, the powers 
of Congress with every assumption of jurisdiction would be 
unrestricted. 

It is therefore proposed briefly to trace the growth of federal 
power over commerce with relation to the questions involved in 
the current proposals for trust regulation ; and having thus shown 
the extent of the jurisdiction, it is intended to take up two express 
limitations upon the federal power: first, the provision securing 
liberty for every person, and second, the provision that Congress 
shall not tax articles exported from any state. 

The Nature and Extent of the Federal Power. 

The provision of the Constitution which compels the courts to 
distinguish between interstate commerce and that commerce which 
is domestic within each state presents the problem of projecting a 
physical boundary line as an economic distinction. In fact, how- 
ever, there is no economic distinction which even roughly corre- 
sponds with state boundaries. Commerce is a whole, and a power 
to regulate commerce, if complete and unlimited by an arbitrary 
line of division, must extend to all commerce, wherever conducted. 
Such a complete power Congress does not possess. The Constitu- 
tion in fact establishes an arbitrary limit to federal jurisdiction. 

A distinction of this nature, however, clear as it may at first be 
made, is difficult to observe. Courts proceed so largely by logical 
processes, seeking to create a consistent and harmonious body of 
decisions, that an arbitrary distinction, undiscoverable by logic, 
inevitably tends to blur. In the course of time, then, and under 



1/2 HARVARD LAW REVIEW. 

changing conditions, federal powers have undergone a develop- 
ment which must now be accepted as a fact. To understand the 
existing federal power it is necessary, therefore, to define the 
original grant of authority, and then to follow the history of its 
development. 

In thus examining the federal power over commerce two facts 
conspicuously appear : first, that the constitutional grant was not 
a broad, general jurisdiction, but was a definite authority to ac- 
complish specific purposes ; and second, that the development of 
this power has not been such as to enable Congress to interfere 
with free transportation, but rather, of a character to secure free- 
dom of transportation, even as against impediments which could 
not have been foreseen when the Constitution was formed. 

The commerce clause seems now popularly to be understood to 
give Congress such power as was outlined by Randolph in the 
sixth resolution submitted to the Convention on May 29, 1787. 
It was then proposed that Congress should be empowered "to 
legislate in all cases in which the separate states are incompetent, 
or in which the harmony of the United States may be interrupted 
by the exercise of individual legislation.'' 

It is clear, however, that the Convention did not at any stage of 
its debates contemplate the grant to the federal government of an 
undefined jurisdiction. Upon this subject there was no division of 
opinion. Charles Pinckney and John Rutledge objected to the 
vagueness of the resolution, saying that " they could not well 
decide how to vote until they should see an exact enumeration of 
the powers comprehended by this definition." In this Pierce 
Butler agreed, and Randolph himself " disclaimed any intention 
to give indefinite powers to the national legislature, declaring that 
he was opposed to such an inroad on the state jurisdictions." ^ 

The Convention therefore by common consent proceeded to 
enumerate all cases in which jurisdiction should be given to 
Congress, so that, as stated in Massachusetts, only " a well guarded 
power to regulate trade shall be entrusted to Congress." ^ 

The purpose to avoid indefiniteness appears in many provi- 
sions of the completed instrument Congress, for example, is not 
only given power to coin money, but specific authority is added to 
regulate the value thereof and of foreign coin, and to punish coun- 
terfeiting. General power is given to declare war, and specific 

1 5 Elliot Deb. 139. « Bancroft, Vol. VI. p. 141. 



CONGRESS, AND REGULATION OF CORPORATIONS. 173 

authority is added to grant letters of marque and reprisal, to make 
rules for the government of land and naval forces, and rules con- 
cerning captures on land and water. A general power is given to 
call forth the militia to execute the laws of the Union, and there is 
added specific power to suppress insurrections. Power to regulate 
commerce, then, was not given as an indefinite jurisdiction, but was 
intended as a specific authority to effect certain well understood ends. 

The great purposes which it was sought by the Constitution to 
accomplish were four in number. It was necessary to establish a 
federal authority capable of raising a federal revenue, to regulate 
foreign relations, to prevent the imposition of duties by particular 
states upon articles brought from other countries, or from or 
through other states, and to control navigation. These four great 
purposes were each covered by express provision. 

Power to raise a revenue from foreign commerce, implied in the 
commerce clause,^ was expressly granted by the provision that 
Congress may impose taxes, duties, imposts, and excises, subject, 
however, to the restrictions that duties, imposts, and excises be uni- 
form throughout the country, and that direct taxation be appor- 
tioned to the population. Power to control foreign relations was 
given by the clause which authorized the executive, with the Senate, 
to make treaties. The prevention of duties by particular states was 
accomplished by forbidding state taxation of exports and imports. 

There remains, then, the commerce clause. What was its mean- 
ing? To understand this clause it is necessary to consider the 
situation and the methods by which commerce was conducted 
when the Constitution was framed. 

The principal commerce at that time was conducted by sailing 
vessels with foreign nations. Beside this there was also a con- 
siderable coasting trade from state to state along the Atlantic sea- 
board. Interior communication between states had hardly begun. 
Such as existed was carried on by horse and wagon, and by vessels 
or flatboats on rivers. It was, however, to the foreign and the 
coasting trade that the attention of the country was directed. This 
trade, James Bowdoin said, was in a "miserable state" because 
of the want of power in Congress.* Other nations prohibited 
our vessels from entering their ports and laid heavy duties on our 



1 Williamson, Remarks on the New Plan of Government, printed in State Gazette 
of North Carolina in 1788 ; Ford, Essays on the Constitution 393, 401. 
« 2 Elliot Deb. 83, 106. 



174 HARVARD LAW REVIEJV. 

exports to them, and we had no way of retaliating because of the 
impotence of Congress. 

This, then, was the commercial situation when the Constitution 
was formed. The ** retaliating or regulating power," as Bowdoin 
called it, was granted by universal consent.^ Of the meaning 
of this clause, there was in the early days of the Constitution 
no uncertainty. It included power to pass a navigation act 
and authorized Congress to levy duties upon foreign imports. 
Monroe said that 

" Commerce between independent powers or communities is universally 
regulated by duties and imposts. It was so regulated by the States before 
the adoption of this Constitution, equally in respect to each other and to 
foreign powers. The goods and vessels employed in the trade are the only 
subjects of regulation. It can act on none other." * 

Congress was authorized then to regulate foreign and coasting 
trade and also to regulate trade among the states. It has often 
been assumed that federal authority over these branches of com- 
merce, being given in the same words and in the same clause, is 
coextensive. This view is, however, clearly inconsistent with the 
express provisions of the Constitution and with the general scheme 
of the instrument.® 

The states of the Union are not known to foreign nations. So 
far as relates to other countries American commerce is necessarily 
national in character and is conducted under federal authority and 
protection alone.^ In foreign relations the general government 
stands in the place of and represents every state for every national 
purpose. It may exercise its control over foreigfn commerce to 
retaliate upon an unfriendly nation, or injure an enemy; to in- 
fluence international negotiations, or to avoid being drawn into 
unnecessary quarrels. An embargo of foreign commerce may 
therefore be proper, for the federal government cannot be com- 
pelled to grant or to continue its authority and protection. 

As to commerce among the states no such considerations arise.^ 
Here the subject is presented solely as between the individual and 

1 Williamson, Remarks on the New Plan of Government, supra, 
s Message to Congress May 4, 1822. Speech of William H. Crawford in Senate, 
Feb. II, 18 II. Annals, nth Cong., 3rd Sess., pi. 139. 
> Prentice & Egan, Commerce Clause 41. 

* Lord V. Steamship Co., 102 U. S. 541. 

* As to difference in purpose see speech of William H. Crawford in Senate. Feb. II, 
181 1, supra. 



CONGRESS, AND REGULATION OF CORPORATIONS, 1 75 

state and federal governments. It is not affected by international 
considerations, nor does the United States in these relations take 
the place of or represent a state or state laws. 

The distinction has been recognized in the administration o\ 
government from the very beginning. It has been understood that 
to make its exclusions effective Congress could forbid or permit 
foreign commerce and license the coasting trade, but that with 
these exceptions, transportation across state lines was conducted 
under state laws, and was an operation which the federal govern- 
ment could neither permit nor forbid. In 1852, when it was 
sought to extend the coasting laws to ferry boats operating across 
the Mississippi River between Missouri and Illinois, the court said : 

'' A license firom the United States, and a license from a State cannot 
both be necessary to do the same thing. ... A license conveys the right 
to do the thing or it conveys no right \ if it conveys the right to do the 
thing, then no other or further conveyance from any person can be neces- 
sary. A license from the United States to carry on the coasting trade, it is 
urged, is necessary for a steam ferry-boat. If this be so, then a license 
from a State would be of no avail, and need not be obtained. The States 
have exercised the right to license and regulate ferries from the commence- 
ment of the government to this day." ^ 

The doctrine of this case was approved in 1 861, by the Supreme 
Court,' and has not been questioned. 

It is therefore well established that a federal license is not re- 
quired for the conduct of an interstate ferry not engaged in coastwise 
navigation, and that the possession of such a license does not author- 
ize a vessel to engage in such ferriage in violation of State law.^ 

In this respect the rule applicable to ferries was in no way 
exceptional. A ferry is a public highway, — ''a continuation of 
a road," and the rule applied to it was the one applicable to 
all other carriers. The important fact is that all transportation, 
when considered as a business in itself and in relation to the car- 
rier, except foreign commerce and the coasting trade, was within 
state control and beyond federal jurisdiction.^ 

Federal powers over interstate commerce being then small in 

^ The Steam Ferry Boat, WiUiam Pope, i Newb. Adm. 256. 
« Conway r. Taylor's Executor, i Black (U. S.) 603. 

* Newport v, Taylor, 16 B. Mon. (Ky.) 699; Chilvers v. People, 11 Mich. 43; 
Midland Ferry Co. v. Wilson, 28 N. J. £q. 537 ; Carroll v, Campbell, loS Mo. 55a 

* Chief Justice MarshaU on Federal Regulation of Interstate Carriers, 5 Col. L 
Rev. 77. 



176 HARVARD LAW REVIEIV. 

extent, very few restrictions were needed. Congress had been 
given authority to raise revenue by a tariff on foreign commerce. 
This power was restricted by the rule of uniformity and by the 
provision that no tax or duty should be laid on articles exported 
from any state. Congress was given a limited authority over coast- 
ing navigation, but had no control over communication by land, or 
by interior waters. Its power over navigation was restricted by 
the provisions that no preference should be given to ports of one 
state over those of another, and that vessels bound to or from one 
state should not be obliged to enter, clear, or pay duties in another. 
Aside from this, the federal power over commerce, Edmund 
Randolph said, 

'^ extends to litde more than to establish the forms of commercial inter- 
course between the States and to keep the prohibitions which the Constitu- 
tion imposes upon that intercourse undiminished in their operation ; that is, 
to prevent taxes on imports or exports, preferences to one port over another 
by any regulation of commerce or revenue ; and duties upon entering or 
clearing of the vessels of one State in the ports of another." ^ 

So far as concerns commerce among the states, therefore, 
the rule of the Constitution was free ships, free goods, and, 
except in the foreign and coasting trade, non-interference with 
carriers. From these small beginnings the present federal power 
has developed. 

In Gibbons v, Ogden,^ a case which concerned only the federal 
power over navigation, the power was declared to be exclusive. 
In Brown v, Maryland * it was held that a state tax upon the sale 
of imported goods by the importer in original packages was 
prohibited not only by the express provisions of the Constitution, 
but also by the commerce clause. 

It is sometimes said that the doctrine commonly called the 
" original package *' rule was first declared in Brown v, Maryland.* 
This is a mistake.^ That which was new about this decision was 

^ Opinion on United States Bank biU, Feb. 12, 1791 ; see Federalist No. 42. 
a 9 Wheat. (U. S.) i. » 12 Wheat. (U. S.) 445. 

* Sec Judson, Interstate Commerce 24, 25. 

* The rule was a familiar one when the case was decided. It may be traced to sute 
statutes adopted under the Articles of Confederation : see, for example, Act of N. V., 
March 22, 1784, Laws 1777-1784, c. 10, p. 599; Act of April 11, 1787, Laws 1788-1789, 
c. 81, p. 509. Until 1822 the exemption which was established by the decision in this 
case had been recognized in the Maryland statutes, Frcund, Police Power § 81, and the 
same exemption existed under the statutes of Pennsylvania until 1824 ; see Act of April 
a, 1821, and supplement of March 4, 1824. Biddle v. Comm., 13 S. & K. (Pa.) 405. 



CONGRESS, AND REGULATION OF CORPORATIONS. 177 

not in the announcement of the original package rule, but in the 
extension of the meaning of the commerce clause. Aside from the 
prohibition upon taxation of imports and exports, the Constitution, 
as understood when framed and adopted, imposed no limitations 
upon the taxing powers of the states. 

"The inference from the whole is, that the individual States would, 
under the proposed Constitution, retain an independent and uncontrollable 
authority to raise revenue to any extent of which they may stand in need, 
by every kind of taxation, except duties on imports and exports." * 

The great importance of Brown v, Maryland is that by that decision 
this construction was definitely disapproved. The holding of the 
case is in substance that the federal power derived from the com- 
merce clause, being an exclusive power, and including, as Ran- 
dolph had said, power " to prevent taxes on imports or exports," 
amounted in effect to an original limitation upon state powers. 

The new theory of construction, when adopted, may have seemed 
of small importance, for the tax then in question was in any event 
unconstitutional. In the case of the State Freight Tax,^ however, 
its real importance began to appear. The tax there involved was 
imposed by a state upon every ton of freight carried within its 
limits. Such a tax, the state authorities considered, was not 
strictly a tax upon imports or exports. On the other hand, the 
burden which it imposed upon commercial intercourse among the 
states was as substantial as it would have been had it fallen within 
the precise terms of the constitutional prohibition. The Court 
said: 

" It would hardly be maintained, we think, that had the State established 
custom-houses on her borders, wherever a railroad or canal comes to the 
State line, and demanded at these houses a duty for allowing merchandise 
to enter or leave the State upon one of those railroads or canals, such a 
regulation would not have been a regulation of commerce with her sister 
States. Yet it is difficult to see any substantial difference between the 
supposed case and the one in hand." * 

The tax was held invalid because prohibited by the commerce 
clause. The Court had, but a short time before this decision, held 
that the words " exports " and ** imports " as used in the Constitu- 
tion refer only to foreign trade.* The clause which was intended 

1 Federalist Nos. 33, 32. « 15 Wall. (U. S.) 232. 

« 15 Wall. (U. S.) 276. * Woodruff v. Parham, 8 Wall. (U. S.) 123. 



178 HARVARD LA IV REVIEW. 

to forbid state taxation of interstate as well as foreign trade having 
thus been so narrowed as to fail of its full purpose, the commerce 
clause was broadened to take its place, and thus construed was ap- 
plied so as to operate upon interstate carriers not engaged in the 
coasting trade. 

The rule being established, then, that the states may not tax 
transportation, the next step was taken in the restriction of state 
power to regulate freights and fares for interstate transporta- 
tion, — a jurisdiction which the states had exercised from the 
earliest times, which the Supreme Court had but few years 
before declared to be " unrestricted and uncontrolled " ^ and 
whose exercise had been sustained without question in 1876.' 
This doctrine was not abandoned hastily, but because, in the 
language of Mr. Justice Miller, " it is impossible to see any dis- 
tinction in its effect upon commerce between a statute which regu- 
lates the charges for transportation, and a statute which levies a 
tax for the benefit of the State upon the same transportation." • 

The states being thus deprived of the power to regulate inter- 
state rates, the doctrine has now become current that the Constitu- 
tion gave this power to Congress. Of course the argument by 
which the limitation of state jurisdiction was achieved, if good at 
all, should equally be good as a limitation upon federal power. 
Congress is forbidden to tax exports from any state ; clearly, then, 
under the rule applied in the case of the State Freight Tax, like 
the states, it cannot tax transportation from one state to another, 
and as, in the phrase employed by Mr. Justice Miller in the case of 
the Wabash Railway, it is impossible to see a distinction in its 
effect upon commerce between taxation and regulation of rates, 
therefore the conclusion should have been that Congress is consti- 
tutionally unable to regulate interstate rates. 

The argument was used, however, only against the states. So 
far as Concerns federal power quite a different argument is used. 
Congress, it is said, is not expressly given this power, neither is 
the power expressly denied, and as it no longer exists in the states, 
it must, so it is said, belong to Congress, — a strange inversion of 
the principle still taught in the schools for construction of state 
and federal constitutions. 

1 Railroad Company v, Maryland, 21 Wall. (U. S.) 456, 471. 
« Peik V, Chicago, etc., R. Co., 94 U. S. 164. 

• Wabash Railroad Co. v, Illinois, 118 U. S. 557, 570; reveriing People » 
Wabash Railroad Co., 104 111. 47^ 



CONGRESS, AND REGULATION OF CORPORATIONS. 1 79 

Upon this argument, and upon no other, is based the present 
claim of federal jurisdiction to regulate freight rates. The power 
being, then, entirely beyond the design of the Constitution, it is 
not surprising that its exercise should, as has been shown by 
Mr. Olney * and Mr. Morawetz,' be embarrassed by extraordinary 
constitutional difficulties. 

Federal power has also been extended in other directions so as 
to prevent state legislation, which would interfere with or burden 
interstate transportation or trade or obstruct navigation of public 
waters. The important feature about this history is that the 
power which was originally given to Congress in order to secure 
" an unrestrained intercourse between the States " • has developed 
under the decisions of the Supreme Court subject to the influence 
of this constitutional purpose only and with no other end in view. 
The states have been deprived of power to interfere with the free- 
dom of interstate communication, while on the other hand the 
power has not been acquired by Congress. 

It is still true, as Professor Tucker said, that " the whole Con- 
stitution in all of its parts looks to the security of free trade in 
persons and goods between the States of the Union, and by this 
clause prohibits either Congress or the States to interfere with this 
freedom of intercourse and trade." ^ 

The federal power, then, has not developed so as to authorize 
such legislation over corporations as has lately been proposed, and 
the nature of the jurisdiction which Congress has acquired over the 
avenues of interstate trade, does not, in any proper view of the 
Constitution, authorize it to close those avenues to any person. 
Further than this: the Constitution contains two express limi- 
tations upon Congress which prevent its assumption of these 
powers* 

(i) The Liberty to engage in Commerce. 

The Fourth Article of the Constitution provides that 

" The citizens of each State shall be entitled to all privileges and immu- 
nities of citizens in the several states." 

1 "Legal Aspects of Congressional Railroad Rate-Making/' North Amer. Rev. 
October, 1905. 

« "The Power of Congress to Regulate Railway Rates/* 18 Harv. L. Rkv. 572. 
See also article by Mr. Blackburn Esterline, ** Regulation of Railway Rates oy 
Congress is Impracticable/' 39 Am. Law Rev. 517. 

' Federalist, No. 11. 

* Tacker, Constitution § 256. 



l8o HARVARD LAW REVIEW. 

The Fifth Amendment, that 

" No person shall ... be deprived of life, liberty or property, without 
due process of law." 

The Fourteenth Amendment protects the liberty of every per- 
son against invasion by state authority. When legislation is pro- 
posed which would forbid any person or class of persons to follow 
ordinary pursuits freely permitted to others, these constitutional 
provisions must be considered. 

It is the singular good fortune of the Constitution that it was 
founded during that short period when political ideas were those 
of the completest individual liberty, — "while the jealousy of 
power was strong and the love of liberty and of right was ardent." ^ 
** If we examine the present state of the world," James Winthrop 
said, " we shall find that most of the business is done in the freest 
states, and that industry decreases in proportion to the rigour of 
government." * This was not the spirit of the old regime, when 
industry was a privilege acquired by license from government or 
by the election of a guild,* and it may not be the spirit of the new 
r6gime, under which organizations not unlike the guilds have 
arisen, and the revival of governmental license is proposed. In- 
dustrial liberty for the modern world was the discovery of the 
seventeenth and eighteenth centuries, and its security, with all 
other rights, which together constitute freedom, was the great 
purpose of American governments. 

To this end provisions were inserted in state constitutions, de- 
claring and protecting the inalienable rights of man. No such 
provisions were inserted in the Federal Constitution, for there they 
were unnecessary. The liberty of the citizen was protected by 
the state, not by the United States. This, said Alexander Contee 
Hanson,* results from the nature of a federal republic, which " con- 
sists of an assemblage of distinct states, each completely organized 
for the protection of its own citizens." The rights of private citi- 
zens, James Bowdoin said, are not " the object or subject of the 
Constitution." * 

* Ruffin, C. J., in Hoke v, Henderson, 4 Dev. (N. C.) 33 (1833). 

> Letter of James Winthrop (Agrippa) in Massachusetts Gazette, Nov. 23, 1787 ; 
Ford, Essays on the Constitution 53, 55. 

* Lecky, Democracy and Liberty, Vol. W. p. 243. See remarks of Senator Hayne 
of South Carolina, April 30, 1824. Annals, i8th Cong., ist Sess., Vol. L p. 623. 

^ " Remarks'* published in Ford, Pamphlets on the Constitution 221, 241*243. 
» 2 Elliot Deb. 87. 



CONGRESS, AND REGULATION OF CORPORATIONS. l8l 

The states, then, it was answered, should accept the Constitution 
upon the express condition that nothing therein deprive a citizen 
of the rights given to him by the state in which he resides ^ or the 
Constitution should be amended so as to protect every individual 
in the enjoyment of rights derived from the states. Such condi- 
tional acceptance or amendment was unnecessary, but to satisfy 
doubts, not to alter the operation of the Constitution' the amend- 
ments known as the Bill of Rights were proposed in 1789 and soon 
after adopted. 

By these amendments the provision of the Constitution giving 
to citizens of each state all the privileges and immunities of citi- 
zens of the several states^ was supplemented by a long list of 
rights not to be infringed, including provisions, not restricted to 
the protection of citizens, which enact that no person — that is, 
as the word is construed, no citizen, alien or corporation — shall 
be deprived of life, liberty, or property without due process of 
law ; that private property shall not be taken for public use with- 
out just compensation ; ^ and that the enumeration of certain 
rights shall not be construed to deny or disparage others retained 
by the states or by the people.*^ 

What are the privileges, immunities, liberties, and rights of 
property thus protected? For these expressions, which have a 
long history in English law, attempts have been made to establish 
a somewhat technical meaning which would so restrict their opera- 
tion as only to forbid arbitrary executions, imprisonments, and 
forfeitures.^ This view comes from a partial consideration of the 
subject. English history and the development of English law 
centre about the growth of individual liberty. To give to the pro- 
visions in the American Constitution which protect individual 
rights the meaning which they would have had for Norman 

1 See letter by James Winthrop in Massachusetts Gazette, Feb. 5, 1788; Ford, 
Essays on the Constitution 119. 

« The preamble adopted with these amendments by Congress reads : " The conven- 
tions of a number of the States having at the time of adopting the Constitution ex- 
pressed a desire, in order to prevent misconstruction and abuse of its powers, that 
further declaratory and restrictive clauses be added ; and as extending the grounds of 
public confidence in the government will best ensure the beneficent ends of its institu- 
tion, resolved." etc. See Mr. William D. Guthrie, " Conatitutionality of the Anti-Trust 
Act," II Harv. L. Rkv. 80, 83. 

» Article IV. § 2. 

* Fifth Amendment. 

* Ninth Amendment. 

* " The Meaning of the Word Liberty," 4 Harv. L. Rev. 365. 



1 82 HARVARD LAW REVIEW. 

lawyers or for lawyers of the English monarchy, is wholly to mis* 
interpret the purposes of the instrument 

There are, however, authorities which hold that even in early 
law the word " liberty '* referred not merely to freedom from arbi- 
trary imprisonment, but included also industrial liberty so far as 
it existed. *' In a sense all the rights secured by Magna Carta 
were ' liberties/ but the word is probably used here as an equiva- 
lent to ' franchises ' embracing feudal jurisdictions, immunities and 
privileges of various sorts, all treated by medieval law as falling 
within the category of property." ^ " These words have always 
been taken to extend to freedom of trade." ^ From this begin- 
ning the growth of civil, religious, and political rights may in part 
be traced, but liberty comes in part only from England. The 
American declarations of rights. Professor Jellinek says, " enume- 
rate a much larger number of rights than English declarations, and 
look upon these rights as innate and inalienable. Whence comes 
this conception in American law? It is not from the English 
law." ^ Partly, perhaps, consciously or unconsciously, these new 
rights and new ideas are results of life in the new world. Condi- 
tions in America, where every settler had to rely upon himself for 
safety as well as sustenance, where relations to others were com- 
paratively slight and to government hardly felt, made individual 
liberty of the widest character a fact of daily experience. Industry 
as a privilege or as less than an inalienable right would have been 
a difficult conception to introduce. Moreover, "the men who 
founded the American republics, state and federal, were not seek- 
ing to imitate Great Britain. They set out to establish institutions 
such as they thought England ought to have, and not those which 
they found existing." * 

Much of the discussion of the formative period seems, as is often 
noticed, to be of French rather than English origin.* That there 
should have been such an influence seems natural. French and 
Americans had been allies, — their troops had served in the same 
armies, men of the two nations had closely associated at the time 
when the attention of the French nation was absorbed by political 



1 McKechnie, Magna Carta 445. 

« Parker, C. J., in Mitchel v. Reynolds, I P. Wms. 181 (1711). 

* Jellinek, Rights of Man and of Citizens, Ch. VI. 

* Campbell, The Puritan in Holland, England, and America, Vol. I. p. 53. 

* Morley, Rousseaa, Introduction ; Borgeaud, Adoption and Amendment of Con> 
stitntions 19. 



CONGRESS, AND REGULATION OF CORPORATIONS. 1 83 

discussions, and above all by Rousseau.^ American ideas were car- 
ried back to France by the troops who served here ; ^ so that a 
declaration of the " rights of man " was known as ** une id6e 
am6ricaine/' ^ introducing, in Lafayette's phrase, '' the American 
era."* It would seem inevitable that the current French political 
discussion should be introduced into America, and that, at the 
close of the Revolution, many persons in this country, like Aaron 
Burr,^ should be interested in French political theories, and for 
the same reason, — because introduced to this literature by French 
friends. It is one of the surprises of American history that 
the current of influence at this time seems to have flowed in one 
direction only. America influenced France, but it was not until 
later that France influenced America.* 

It is quite possible, however, to trace the rise of the doctrines 
under whose influence the Constitution was formed, without 
recourse to France. 

The Revolution was not a quarrel between two peoples, but 
between two parties, — the conservatives in England and America 
on one side, the liberals in both countries on the other side. In 
England the party of monarchy was successful. In the colonies 

1 ** We have never seen in our generation — indeed the world has not seen more 
than once or twice in all the course of history — a literature which has exercised such 
a prodigious influence over the minds of men, over every cast and shade of intellect as 
that which emanated from Rousseau between 1749 and 1762." Maine, Ancient Law 84. 
Home, writing from Paris in 1756, said : " It is impossible to express or imagine the 
enthusiasm of the nation in his favor ; ... no person ever so much engaged their 
attention as Rousseau." Buckle, Hist. Civ. Eng. Vol. II. pp. 330, 331, notes 12, 13. 

s Buckle, Hist. Civ. Eng. (N. Y. 1894) Vol. II. p. 417, note 211. 

* Dumont, Souvenirs sur Mirabeau 97. 

* ** Uhxt de la revolution am^ricaine qu*on peut regarder comme le commence- 
ment d*un nouvel ordre social pour le monde entier, est ^ proprement parler l*^re des 
declarations des droits . . . Ce n'est done qu'apres le commencement de I'^re ameri- 
caine, qu'il a ^t^ question de d^finer ind^pendamment de tout ordre pre-existant, les 
droits que la nature a d^partts & chaque homme, droits tellement inherens a son 
existence, que le soci^t^ enti^re n'a pas le droit de Ton priver." Lafayette, Memoirs, 
Correspondances, et Manuscrits (Bruxelles, 1837), Vol. II. p. 45. Jellinek, " Rights of 
Man and of Citizens." See the recent discussion of this subject in France, " La De^ 
claration des Droits de I'Homme et du Citoyen," Emile Walch (Paris. 1903, Henri 
Jouve); "Montesquieu et J. J. Rousseau" by J. Tschernoff (Paris, 1903, Librairie 
Marescq Ain^) ; Boutmy, article in Annales de Tecole libre des sciences politiques, 
1902, p. 414. 

* Parton, Life of Burr, ist ed., 132. 

*" Rousseau in Philadelphia," by Lewis Rosenthal, 12 Mag. Am. Hist. 46; 
Merriam, American Political Theories ; Borgeaud, Adoption and Amendment of 
Constitutions; Lee, Letter of a Federal Farmer; Ford, Pamphlets on the Constitu 
tion 290. 



l84 HARVARD LAW REVIEW. 

democratic institutions were established, and it was for the preser- 
vation of these institutions that the war was fought.^ 

The political doctrines of America were the doctrines of the 
Parliamentary party in England, Puritan in character, partly of 
Calvinistic origin and to this extent like much of Rousseau's 
speculation, derived from the democracy of Geneva. " The first 
indications of these religious-political ideas can be traced far back 
for they were not created by the Reformation. But the practice 
which developed," in America, " on the basis of these ideas was 
something unique. For the first time in history social compacts, 
by which states are founded, were not merely demanded, they 
were actually concluded."^ 

Instances of this influence are found in the efforts of Cromwell's 
army to establish by popular vote an instrument of government 
superior to the authority of Parliament ; and in the statutes adopted 
in the early days of Rhode Island and Connecticut by general vote 
of the colonists. The idea from which this practice grew, Bor- 
geaud says, was that to establish government, as to found a con- 
gregation, the consent of all concerned was necessary. " When 
the democratic communities of New England became veritable 
States, the Puritan conception, taken up and systematized by 
philosophy, had become the theory of the social contract. Under 
this new form it presided over the formation and establishment of 
American constitutions of the Revolutionary period, constitutions 
whose most perfect expression was that adopted by Massachusetts 
in 1780. It was by virtue of the formula which Jean Jacques 
Rousseau has rendered famous, but which the Anglo-Saxons had 
not learned from him, that this constitution was submitted to all 
the citizens of the State." ^ 

The political writers who had the greatest influence in forming 
American opinion, and whose works were most quoted in this 
country, were Locke and Algernon Sidney. The principles upon 
which the American Revolution was conducted came largely from 
them,^ and their influence in the constitutional period is strongly 
marked. 

Both of these writers had defined liberty and property as includ- 
ing the right of industry. Locke said : 

^ " The Revolution Impending," by Mellen Chamberlain, in Narrative and Critical 
History of America, Vol. VI. pp. i, 2. 

* JcUinek, Rights of Man 61, 62. 

> Borgeaud, Adoption and Amendment of Constitutions 138. 

* Fiske, Critical Period 64. 



CONGRESS, AND REGULATION OF CORPORATIONS. 1 85 

*' Though the earth and all inferior creatures be comnion to all men, yet 
every man has a ' property ' in his own ' person.' This nobody has any 
right to but himself. The ' labour ' of his body and the ' work ' of his 
hands are properly his."* 

So Algernon Sidney : 

'' Property also is an appendage to liberty ; and 't is as impossible for a 
man to have a right to lands or goods, if he has no liberty^ and enjoys his 
life only at the pleasure of another, as it is to enjoy either^ when he is 
deprived of them." * 

The American governments were formed when the influence of 
this philosophy was at its height. James Iredell, afterward Asso- 
ciate Justice of the Supreme Court, said in the Convention of North 
Carolina that he believed the passion for liberty was stronger in 
America than in any other country in the world.* The legislative 
proceedings of the time justify these statements. " We hold these 
truths to be self-evident, that all men were created equal, that they 
are endowed by their Creator with certain unalienable rights, that 
among these are life, liberty, and the pursuit of happiness." Of 
these statements in the Declaration, the Supreme Court has said 
that while they " may not have the force of organic law, or be 
made the basis of judicial decision as to the limits of rights and 
duty, and while in all cases reference must be had to the organic 
law of the nation for such limits, yet the latter is but the body and 
the letter of which the former is the thought and the spirit ; and it 
is always safe to read the letter of the Constitution in the spirit of 
the Declaration of Independence." * 

In state constitutions the doctrines of individual freedom were 
still more fully declared. The Bill of Rights of Virginia, in 1776, 
was adopted to secure 

" the enjoyment of life and liberty, with the means of acquiring and possess- 
ing property, and pursuing and obtaining happiness and safety." 

New Hampshire in 1784 and again in 1792 prefaced its Constitu- 
tion with the statements that 

''All men have certain natural, essential and inherent rights; among 
which are the enjoying and defending life and liberty, acquiring, possess- 

1 Second Treatise on Government, Ch. V. § 27. 

' Discourses on Government, Ch. III. § 16; see too Adam Smith, Wealth of 
Nations, Bk. I. Ch. X. Part II. ; Thiers. De la Propriete 36, 37. 

» 4 Elliot Deb. 95. * Gulf, etc., Ry. Co. v, Ellis, 165 U. S. 150, 159-160. 



I86 HARVARD LAW REVIEW. 

ing and protecting property, — and in a word of seeking and obtaining 
happiness." 

Similar expressions are in the constitutions of most of the other 
states. The Constitution of Missouri some years afterward, in- 
stead of referring generally to the right of acquiring and possess- 
ing property, includes among the inalienable rights of individuals 
'' life, liberty, the enjoyment of the fruits of their own labor and 
the pursuit of happiness," a phrase which was modified so as to 
protect individuals in " the enjoyment of the gains of their own 
industry." Upon this subject the Constitution of Kentucky still 
later, in words which recall Lafayette's expressions,^ said that 
" absolute power over the lives, liberty and property of persons 
exists nowhere in a republic, not even in the largest majority." 

In all these broad phrases law-makers used, not the language of 
Norman law, but spoke, as Fisher Ames said of the Federal Con- 
stitution, in "the language of philosophy." * 

The purpose to secure individual liberty — a controlling pur- 
pose of the communities which framed and adopted the Constitu- 
tion — inheres, then, not only in its preamble, but in the operating 
provisions by which this purpose was made effective. Among the 
most important of these provisions are those securing the right of 
industry. "The right to make contracts," William H. Crawford 
saidy "is antecedent to and independent of all municipal law."' 
Early in the history of the government the federal courts held 
that the privileges and immunities of citizenship included "the 
right of citizens of one State to pass through, or reside in any 
other State, for the purposes of trade ... or otherwise."* In 
Gibbons v, Ogden the Supreme Court, speaking by Mr. Chief Jus- 
tice Marshall, held that the right of intercourse between state and 
state was not granted by the Federal Constitution, but " derives its 
source from those laws whose authority is acknowledged by civil- 
ized man throughout the world." * 

That is, in other words, the right to engage in interstate com- 
merce is part of the inalienable liberty which, according to the 
philosophy of that time, has a higher source than the Constitution 

1 Memoirs. Correspondances et Manuscrits (Bnizelles, 1837), Vol. II. p. 45. 
« 2 Elliot Deb. 155. 

s Speech in Senate, Feb. 20, 181 1 ; Annals, nth Cong., 3d Sess., pL 340. 
« Corfield v. Coryell, 4 Wash. C. C. Rep. 371 ; Ward v. Maryland, 12 Wall. (U. S.) 
418, 430. 

» 9 Wheat. (U. S.) 1,211. 



CONGRESS, AND REGULATION OF CORPORATIONS. 1 87 

itself, and whose protection is one of the chief purposes for which 
government is instituted. Political theories have changed since 
this decision, but the Constitution remains, and the rights which 
it was formed to protect still have its assurance. 

Under the influence of slavery the meaning of the word " liberty " 
was much restricted. It proved to be true, for the white as for 
the black, that the Union could not remain half slave and half 
free. This narrowing influence is no longer felt, and again liberty 
is " the greatest of all rights," ^ including all rights necessary for 
the maintenance and security of every person, and among others 
the right to engage in commerce. The Fourteenth Amendment 
then marks a return to the earlier constitutional views. It " con- 
ferred no new and additional rights, but only extended the protec- 
tion of the Federal Constitution over rights of life, liberty and 
property that previously existed under all state constitutions."* 

Under this amendment liberty " means not only the right of the 
citizen to be free from the mere physical restraint of his person, 
as by incarceration, but the term is deemed to embrace the right 
of the citizen to be free in the enjoyment of all his faculties ; to 
live and work where he will ; to earn his livelihood by any law- 
ful calling; to pursue any livelihood or avocation, and for that 
purpose to enter into all contracts which may be proper, necessary 
and essential to his carrying out to a successful conclusion the 
purposes above mentioned," ^ and in so doing to move freely from 
state to state.* "The right to follow any of the common occu- 
pations of life is an inalienable right."' 

The right to engage in commerce is, then, part of the liberty 
derived from the states which neither the United States ^ nor the 
states ^ may deny. There is no process of law by which the right 
may be taken. As the right is derived from state law,^ it belongs 

^ Jacobson v. Massachusetts, 25 Sup. Ct. Rep. 358, 361. 
> Mobile & Ohio R. R. v. Tennessee, 153 U. S. 486, 506. 

* Allgeyer v. Louisiana, 165 U. S. 578, 589; Pavesich v. New England Life Ins. Co. 
50 S. £. Rep. 68 ; City of Chicago v. Netcher, 55 N. £. Rep. 707 ; Kellyville Coal Co. 
V, Harrier, 69 N. £. Rep. 927 ; Erdman v. Mitchell, 56 Atl. Rep. 327 ; State v. Dodge, 
56 Atl. Rep. 983; State v. Ashbrook, 55 S. W. Rep. 627. 

* Williams v. Fean, 179 U. S. 270. 

* Opinion of Mr. Justice Bradley in Butchers' Union Co. v. Crescent City Co., iii 
U. S. 746, approved in 165 U. S. 578, 589. 

* Fifth Amendment. 

T Fourteenth Amendment. 

* Gibbons v. Ogden, 9 Wheat. (U. S.) I ; Bowman v. Railroad Co., 115 U. S. 611; 
"Origin of the Right to Engage in Interstate Commerce," 17 Harv. L. Rev. 20. 



I88 HARVARD LAW REVIEW. 

to those to whom the state gives it, whether citizen, alien, or corpo- 
ration. The protection of the Fifth and Fourteenth Amendments 
belongs to all persons, and cannot be disregarded in respect to 
those artificial entities called corporations any more than in re- 
spect to the individuals who compose them.^ The right to engage 
in commerce is a franchise which, being granted by another sover- 
eign, is beyond federal jurisdiction either to prohibit or to tax.^ 
In this matter the authority of the state is complete, and beyond 
federal control, — a distribution of power which results from the 
nature of a federal republic, " an assemblage of distinct States, each 
completely organized for the protection of its own citizens." • 

The exercise of this constitutional right, derived from state law, 
to engage in commerce, is necessarily subject to two limitations. 
The first of these is, of course, the wide federal jurisdiction in for- 
eign affairs already mentioned. The second limitation is in the 
power of police regulation, which belongs to Congress, and which 
has been exercised, for example, in the statutes forbidding trans- 
portation of articles which, by the commercial usage of nations, 
are not legitimate subjects of commerce. Congress, that is, has a 
discretionary power, within constitutional limits, so to regulate 
commerce as to accomplish the purposes for which the federal 
jurisdiction was created. Carriers may be required to give rest, 
water, and food to live stock ; transportation of infected articles 
may be forbidden, and impediments to intercourse among the 
states may be removed. In all this legislation, however, there is 
no question of the person for or by whom commerce is conducted. 
The subject regulated is that portion of commerce given to Con- 
gress, and in the exercise of this power, as in the exercise of its 
other powers, Congress is subject to all the limitations imposed 
by the Constitution.^ Congress cannot deprive any person of 
liberty, exclude proper articles from interstate transportation,^ nor 

I Gulf, Colorado, etc., Co. v, Ellis, 165 U. S. 150, 154; United States v. Northwest- 
ern Express Co , 164 U. S. 686, 6S9,- Covington, etc., Co. v. Sandford, 164 U. S. 578, 
592 ; Coffeyville Vitrified Brick Co. v. Perry, 76 Pac. Rep. 848 ; State v. Missouri Tie ^ 
Co., 80 S. W. Rep. 933. 

s Louisville, etc., Co. v, Kentucky, 188 U. S. 385; Pacific Railroad Cases, 127 U. S. 
1,40. 

* A. C. Hanson, "Remarks" published in Ford, Pamphlets on the Constitution 
221, 241-243. 

* Monongahela Navigation Co. v. United States, 148 U. S. 312, 336. 

» Ex parte Jackson, 96 U. S. 727, 735 ; In re Rapier, 143 U. S. no, 133; Speech of 
Wm. M. Evarts in Senate, Jan. 13, 1887, Cong. Rec, 49th Cong., 2d Sess., Vol. XVIIL 
Part I. p. 603. 



CONGRESS, AND REGULATION OF CORPORATIONS. 189 

distinguish between proper occupations by reason of the person- 
ality of shipper or consignee. Some rights in every free govern- 
ment are beyond control of the state. " A government which 
recognized no such rights, which held the lives, the liberty, and 
the property of its citizens subject at all times to the absolute dis- 
position and unlimited control of even the most democratic depos- 
itory of power, is after all but a despotism." ^ 

The two powers, state and federal, must, in the language of 
Senator Wells, " keep company," and " every application of . . . 
power, by the United States, which has a tendency to embarrass 
or impair the free exercise of the power reserved to the States is 
unwarranted, and, if done . . . with a view to such a purpose, is 
the affair of arrogance and usurpation." ^ 

(2) Taxation of Imports and Exports. 

It has been stated that under the Constitution as originally 
formed, and for many years administered. Congress had no juris- 
diction over transportation from state to state, save as conducted 
by coastwise navigation.' Interstate transportation was left to the 
states, Congress being forbidden to tax articles exported from any 
state, and the states forbidden to tax imports or exports. The 
restriction upon the states, Randolph said. Congress might keep 
'* undiminished " in operation by legislation under the commerce 
clause, but beyond this, federal power did not extend. Congress 
being then without jurisdiction over carriage among the states, 
there was no need to provide that it should not tax or prohibit 
such transportation, for Congress had no power to which such a 
restriction could apply. 

Federal power, then, never extended so far as to enable Congress 
to close interstate roads ; but this defect of power is not all. Beside 
this, Congress is subject to the express provision forbidding taxa- 
tion of exports, and this provision should not only prevent taxation 
of the goods carried, but should forbid taxation of interstate trans- 

^ Loan Association v. Topeka, 20 Wall. (U. S.) 655, 662; Opinion of Justice Beck 
in Hanson v. Vernon, 27 Iowa 28, 73, approved in State v. Mayor, etc., of Des Moines, 
103 Iowa 75. 

* Senator Wm. H. Wells, of Delaware, April i, 1816^ Annals, 14th Cong., ist Sess., 
Vol. I. p. 259. 

' Chief Justice Marshall on Federal Regulation of Interstate Carriers, 5 Col. L. 
ReT. 77 ; Speech of J. W. Singleton, of Illinois, in House of Representatives, Feb. 4, 
1881, Cong. Rec, 46th Cong., 3d Sess., Vol. XI. Part III. Appendix, 74-81. 



I90 HARVARD LAW REVIEW. 

portation,^ and as applied to interstate commerce may well be held 
to prevent federal prohibition. 

The rule of the Constitution was free ships and free goods. 
Congress was, indeed, permitted to tax imports from abroad. It 
was intended to raise a federal revenue under the Constitution 
from a tariff upon foreign commerce, but upon commerce among 
the states no tax could be laid. The Southern States were not 
interested in the carrying trade, but were vitally interested in 
preserving access to the markets of the world for their staple 
products. Their most important market was Europe, and foreign 
commerce was chiefly considered in the debates, but even then 
the South contemplated the time when Northern States would be 
an important market, and the reason for prohibiting federal tax- 
ation of exports was, said a member of the Convention, in order 
that the planter should "receive the true value of his product 
wherever it may be shipped."' 

All this would probably be accepted without question, were it 
not for the opinion rendered by the Supreme Court in 1868 in the 
case of Woodruff v. Parham.* This case holds that a state may 
tax articles brought from other states while still in first hands and 
original packages. The rule is necessary. Under any other, as the 
Court said, a " merchant of Chicago who buys his goods in New 
York and sells at wholesale in the original packages, may have his 
millions employed for half a lifetime, and escape all State, county, 
and city taxes ; for all that he is worth is invested in goods which 
he claims to be protected as imports from New York." 

It would have been sufiicient answer to such a claim had the 
Court applied to this clause the interpretation which is now placed 
upon the commerce clause in cases involving state taxation, and 
held that goods can claim no preference from equal burdens by 
reason of foreign origin or because brought from another state. 
Adapting the language used in another connection,^ it may be said 
that a provision forbidding taxation of articles brought from other 
states or countries " does not require that any bounty be given 
therefor." The Court, however, went further than this and held 
that the words " imports " and " exports " applied only to foreign 

1 SUte Freight Tax Case, 15 Wall. (U. S.) 232. 

s Williamson in State Gazette of North Carolina. Ford, Essays on the Consti- 
tution 393. 

» 8 Wall. (U. S.) 123. 

* Cornell v. Coyne, 192 U. S. 426. 



CONGRESS, AND REGULATION OF CORPORATIONS. 191 

trade, a rule which has been followed in later cases.^ " It is not 
too much to say," Mr. Justice Miller remarked in delivering the 
opinion of the Court, and referring to the debates of the constitu- 
tional period, " that so far as our research has extended, neither 
the word export, import, nor impost is to be found in the discus- 
sions on this subject, as they have come down to us from that 
time, in reference to any other than foreign commerce, without 
some special form of words to show that foreign commerce is 
not meant."* 

This decision, from which Mr. Justice Nelson dissented, com- 
pletely reversed the rule which up to that time had generally been 
accepted. Mr. Chief Justice Marshall^ and Mr. Justice Story* 
had both understood the words to include foreign and interstate 
commerce alike, and the Supreme Court itself, in a decision ren- 
dered by Mr. Chief Justice Taney, had so applied them.^ In some 
respects time and experience of the workings of the Constitution 
give later generations better opportunities for practical under- 
standing of that instrument than were open to its framers, but it 
is not likely that in 1868 the language of the Constitution could 
better be understood than in earlier times. The definitions given 
by Mr. Justice Miller, therefore, have not generally been accepted 
as convincing. 

" Before the adoption of the Constitution, and therefore at the 
time it was framed, and its phraseology discussed, an article 
brought from Pennsylvania to North Carolina would have been 
said to be imported into North Carolina, and a tax on it would 
have been called an ' import tax.' It is difficult to say by what 
other name such a tax, if it could be laid, would now be styled." * 
Members of the Supreme Court have expressed the same view. 
Mr. Chief Justice Fuller, in a dissenting opinion in which Justices 
Brewer, Shiras, and Peckham agreed, said that although this pro- 
vision of the constitution had been restricted in application to 
exports to a foreign country "it was plainly intended to apply 

1 Hinson v. Lott, 8 Wall. (U. S.) 148; Brown v, Hoaston, 114 U. S. 622; Pittsbarg 
Coal Co. V. State, 156 U. S. 590; Fairbank v. United States, 181 U. S. 283; Prestonv. 
Finley, 72 Fed. Rep. 850 ; Sute v. Pittsburg, etc., Coal Co., 41 La. Ann. 465 ; Ex parU 
Martin, 7 Nev. 140. 

« Woodruffs. Parham, 8 Wall. (U. S.) 123, 136. 

* Brown v. Maryland, 12 Wheat. (U. S.) 445. 
4 Commentaries on the Constitution § 1016. 

* Almy V, California, 24 How. (U. S.) 169. 

* American Fertilizing Co. v. Board of Agriculture, 43 Fed. Rep. 609, 61a. 



192 HARVARD LAW REVIEW. 

to interstate exportation as well."* Notwithstanding these dis- 
senting views, the decisions^ indicate that the rule which in Wood- 
ruff V, Parham was applied to the clause forbidding the states to 
tax exports and imports, may also be applied to the clause for- 
bidding Congress to tax exports from any state, although this 
clause is so worded as apparently to exclude such construction. 
In view of these dissensions the wording of the provision deserves 
attention. 

When a governmental power over imports and exports is dis- 
cussed, the words naturally refer to the territorial boundaries of 
the government whose powers are considered. Thus the New York 
statutes speak of articles manufactured in the city of Hudson " or 
imported or brought into the said City from any place whatso- 
ever," ^ and similar references are made to importations into the 
city of Albany,* to exportations from Albany, Saratoga, or Rens- 
selaer counties to points south of Albany,^ and to exports from 
Suffolk, Kings, and Queens counties.^ In all these cases the 
words imports and exports relate to county and municipal boun- 
daries. The English statutes speak of exportations from a partic- 
ular port, and as so used the word refers to all goods taken out of 
that port, including those carried in the conduct of the coasting 
trade to other ports in England.^ To prohibit a state in general 
terms to tax imports or exports would therefore, in the natural 
meaning of the words, refer to the territorial boundaries of the 
power thus limited and would forbid taxing articles carried across 
state lines. A similar restriction upon the power of the federal 
government would forbid taxing articles carried across national 
lines. If it were sought to extend this prohibition so as to 
prevent federal taxation of articles carried across state lines, the 
wording of the prohibition should be made with specific reference 
to the boundaries, not of the federal government, but of the 
states. This in fact is the form of the constitutional limitation 
upon federal power. 

1 Champion v, Ames, i88 U. S. 321. 

^ Turpin v, Bargess, 117 U. S. 504; Dooley v. United States, 183 U. S. 151, 154: 
Cornell V. Coyne, 192 U. S. 418, 427 ; American Steel & Wire Co. v. Speed, 192 U. S. 
500. 

* Act of January 26, 1793, ^^^ 1 789-1 796, c. 22, p. 414. 

* Act of April 3, 1790, i^d, c. 47, p. 175. 

* Act of April 3, 1797, Laws I797>i8oo, c. 94, p. 128. 

* Act of April 4, 1800, Laws 1 797-1 800, p. 447. 

7 Muller V. Baldwin, L. R. 9 Q. B. 457 ; Barrett v. Stockton, etc., R. Co., 2 M. & G. 
163; 3 M. & G. 956; II CI. & F. 590. 



CONGRESS, AND REGULATION OF CORPORATIONS. 193 

The states are forbidden in general terms to lay any tax or 
duty upon imports or exports, while upon the powers of the 
federal government the limitation is made with express reference 
to state boundaries. No tax or duty, it is said, shall be laid by 
Congress " upon articles exported from any State." Here, then, 
the Constitution in fact used just such a special form of words 
as the Court in Woodruff v. Parham considered appropriate to 
designate commerce among the states. 

Verbal criticism apart, however, it appears that in the common 
use of the terms, so far as concerned jurisdiction over goods carried 
across state lines, each state at the time of the formation of the 
Constitution was foreign to every other.^ All commerce, then, 
except that which was entirely within each state, was foreign com- 
merce. In Massachusetts, for example, where several statutes 
required inspection of lumber shipped " for exportation to foreign 
markets" or " exported beyond sea," it was enacted on March i6, 
1784, that this term "shall be considered and understood to ex- 
tend to any port or place not within this Commonwealth." This 
statute does not purport to amend the acts to which it refers, nor 
to alter their application, but solely to define the terms employed. 
The word " foreign " was capable of different meanings, of which 
Massachusetts adopted the broadest. Under this construction 
even the rule of Woodruff v. Parham would apply the constitu- 
tional restrictions upon state and federal power to interstate as 
well as to international commerce. In general, the words '' im- 
ports " and " exports " when used without express restriction ap- 
pear in Massachusetts to have included all trade crossing the state 
line." 

That the Massachusetts rule prevailed also in other states is 
shown by the construction placed upon the Pennsylvania statute 
of 1759 for the inspection of lumber. 

This statute, after reciting that " the reputation of this province 
hath been much advanced by the care of the legislature to prevent 
frauds and abuses in divers commodities of our country produce 
exported to foreign markets," proceeds to enact among other 
things '* that no merchant . . . shall . . . take or put on board 
any ship or vessel for exportation out of this province, any staves, 

1 Commonwealth v. King, i Whart. (Pa.) 448. 

3 Act of July II, 1783, Perpetual Laws, VoL I. p. 103; Act of March 31, 1788, Md, 
p. 415; Act of February 26, 1794* i^* Vol. II. p. 336; Act of February 27, 1795, '^^ 
p. 272. 

13 



194 HARVARD LAW REVIEW. 

heading, boards, planks, or lumber " before inspection thereof as 
provided by the statute. 

In Shuster v, Ash,^ decided by the Supreme Court of Pennsyl- 
vania in 1824, it was held that this statute, although enacted in 
avowed contemplation of " foreign markets," applied to a ship- 
ment of staves from Philadelphia to Wilmington. The Court 
said: 

" It cannot be denied that the case falls within the words of the law, 
because, although the proprietaries of Pennsylvania were also proprietaries 
of the three lower counties of New Castle, Kent and Sussex on the Delaware, 
and both were under the same governor, yet the legislatures of the province 
and counties were in the year 1759 totally independent of each other, and 
so continued until the revolution in 1776, when each became a sovereign 
independent State. But it is contended, that the intent of the act is 
explained by the preamble, which is confined to an exportation to foreign 
markets. If the question had rested on the expression foreign markefSy 
the defendant would have had much to say for himself, though even then 
it would not have been far from difficulty. A country governed by the 
same king would not, strictly speaking, be a foreign country. And yet 
without doubt an exportation to the British West India Islands must have 
been considered as within the provision of the act, because the principal 
markets for staves, &c., were in those islands, and yet they were subject to 
the same king as Pennsylvania. Construing the word foreign with greater 
latitude, it might extend to all countries beyond sea, without considering 
whether subject to the same sovereign or not, and carrying its signification 
to its utmost extent, it might include all countries and governments, other 
than the province of Pennsylvania, wherever situate. The main intent of 
the act was to make Pennsylvania staves more valuable by keeping up their 
character in consequence of their quality. The same observation applies 
to all other articles, which by various laws were made subject to inspection, 
— such as bread and flour, beef and pork, butter and lard, bark, fish, flax- 
seed, &c. I have examined all these acts and they are expressed pretty 
much as the one now under consideration. They prohibit exportation out 
of the province^ or (since the revolution) out of the state. The words 
out of the province are so plain, that they seem manifestly intended to define 
the limits beyond which all markets should be deemed foreign markets. 
Unless we adhere to the line prescribed by the act, (the boundary of the 
province) where are we to stop and what exceptions are we to make? 
New Jersey is as near to us as Delaware — and Maryland joins both Dela- 
ware and Pennsylvania. The counsel for the plaintiff says that none of 
the old thirteen colonies of Great Britain, which afterwards confederated 

1 II S. &R. 90. 



CONGRESS, AND REGULATION OF CORPORATIONS. 195 

and established their independence could be called foreign markets within 
the meaning of this act of assembly. Now see to what this would lead. 
Pennsylvania exported large quantities of flour, to the eastward and south- 
ward — to Massachusetts and the Carolinas. Was it not of great impor- 
tance that the character of her staple should be kept up in those markets ? 
And is it not of great importance still ? The coasting trade is of immense 
value. . . . 

" So that we shall find, upon reflection, that our ancestors knew what 
they were doing when they used the words out of the province, and this will 
appear more clearly when we advert to an act passed in the year 1721, 
•For the well tanning and currying of leather,' &c. This act declares 
' that it shall not be lawful for any person or persons to lade, ship, or carry 
in any ship or vessel . . . with intent to transport or convey the same to 
any place or places out of the province except such as may be carried to 
the province of New Jersey, and counties of New Castle, Kent and Sussex 
on Delaware' . . . &c. &c. This shows that the legislature considered 
New Jersey and the counties on Delaware as embraced by the expression 
out of the province and therefore it was that they expressly excepted them. 

" The other colonies pursued in their inspection laws the same policy as 
Pennsylvania. Each took care of itself, and considered its neighbors quo 
ad hoc ^% foreigners. The counsel for plaintiff cited the laws of Connecticut 
with respect to beef and pork. And I have examined the act for the 
inspection of tobacco passed in Maryland in the year 1763. The words 
are these " all tobacco which shall be exported out of this province shall 
be . . . inspected." 

This stringent rule which made all states foreign was perhaps 
not invariable. An exception is suggested by comparing three 
statutes passed by the state of New York in March, 1787.^ These 
statutes are similar in form. The first, after reciting that " butter 
and hogs lard have become articles of great exportation from this 
State and it is necessary that the exportation thereof be regulated," 
makes provision for inspection of butter and lard to be " exported 
from this State." The second statute^ provides for inspection of 
beef and pork. The third,' passed on the same day with the sec- 
ond, after reciting that " staves and heading have become articles 
of considerable exportation from this State, and it is necessary that 
great care be taken to preserve their reputation at foreign markets," 
enacts that " no staves or heading shall be exported out of this 
State to any foreign market, but such as shall be culled . . .", etc. 

* Act of March i, 1788, Laws 1785-1788, c. 55, p. 717. 

* Act of March 7, 1788, ibid, c. 55, p. 719. 
» Ibid, c. 56, p. 723. 



196 HARVARD LAW REVIEW. 

The difference in the wording of statutes otherwise so much 
alike appears to indicate that the word " foreign " in this instance 
was employed to prevent the application of the general terms in 
the statute to commerce with other states. That the words when 
used in the New York statutes without such limitation would apply- 
to interstate trade is shown by the Act of March 22, 1784,^ impos- 
ing duties in general terms '' on the importation of certain wares 
and merchandise," but excepting the product " of the United States 
or any of them." Similar provisions exist in other statutes,' and 
unless limited the words ordinarily applied to all imports and 
exports, — foreign or interstate.' 

In Connecticut a duty of two pence was imposed " for every gal- 
lon of rum imported " into the state. That this general law applied 
to interstate trade is shown by the fact that an allowance was made 
for wastage in transit which was fixed at " five per cent, for rum 
imported directly from the West Indies, and two per cent, for rum 
imported from the neighboring states."* This law was subse- 
quently amended so that no duty was payable on rum not sold in 
the state, '' provided, nevertheless, that nothing in this Act shall be 
construed to exempt rum exported out of this State northward by 
way of Connecticut River," etc.* In other words, Connecticut 
taxed the traffic of Western Massachusetts, Vermont, and New 
Hampshire, but did not intend to drive from its ports commerce 
on its way to New York and Rhode Island. 

The same meaning of the words " exports " and " imports " ap- 
pears in many other statutes, of which but a few need be cited.® 

The constitutional provision must then have been intended, as 
was said by Mr. Justice McLean, to prohibit federal taxation of 
interstate commerce. " A revenue to the general government 
could never have been contemplated, from any regulation of com- 
merce among the several States. Countervailing duties under the 



» Laws 1777-1784, c. 10, p. 599. 

' Act of April II, 1787, Laws 1785-17S8, c. 81, p. 509; Act of March 12, 1788, ibid. 
c. 72. p. 786. 

* Act of March 16, 1785, Laws 1785-1788, c. 35, p. 66; Act of May 4, 1786^ ibid. 
c. 61, p. 320; Act of April 2, 1799, Laws 1797-1800, p. 439. 

* Laws 1786, p. 210. * Jbid. p. 326. 

' Cofinectiaa, Laws 1786, p. 245; Laws 1796, p. 321. New Hampshire ^ Act of 
June 21, 1785 ; Laws 1792, p. 313; Act of Dec. 28, 1791 ; Laws I797,P' 38i- Virginia, 
Act of Dec. 26, 1792; Laws 1803, PP- ^1-242, $3; Act of Dec. 28, 1795; Laws 
1803, P* 352 ; Act of Jan. 27, 1802 ; Laws 1803, P* 43^* South Carolina, " Imposts " Act 
of Dec 12, 1795. 



CONGRESS, AND REGULATION OF CORPORATIONS. 197 

Confederation were imposed by the different States to such an 
extent as to endanger the Confederacy. But this cannot be done 
under the Constitution by Congress, in whom the power to regulate 
commerce among the States is vested." ^ 

(3) The Purpose of Constitutional Construction, 

George Clinton said that in the course of a long life he had 
found government not to be strengthened by an assumption of 
doubtful powers. The proposed method of trust regulation is this 
and more, — an assumption of powers for which there is no pre- 
cedent, in order to supersede state laws on the subject of state 
corporations, — a field in which Congress has no jurisdiction 
whatever. 

The question is therefore presented of the purpose of constitu- 
tional interpretation. The Supreme Court has often held, in 
passing upon the validity of state laws, that the courts will look 
into the operation and effect of a statute to discern its purpose,' 
and that if laws purporting to be enacted in the exercise of powers 
belonging to the state have no real or substantial relation to the 
objects of those powers, it is the duty of the court so to adjudge 
and thereby give effect to the Constitution.^ The same rule which 
tests the validity of state legislation determines also the validity of 
legislation by Congress. 

" The propriety of a law in a constitutional light," Hamilton said, 
" must always be determined by the nature of the powers upon 
which it is founded. Suppose, by some forced constructions of its 
authority (which, indeed, cannot easily be imagined), the Federal 
legislature should attempt to vary the law of descent in any State, 
would it not be evident that, in making such an attempt, it had 
exceeded its jurisdiction, and infringed upon that of the State? 
Suppose, again, that upon the pretence of an interference with its 
revenues, it should undertake to abrogate a land tax imposed by 
the authority of a State; would it not be equally evident that 
this was an invasion of that concurrent jurisdiction in respect to 

1 McLean, J., in License Cases, 5 How. (U. S.) 504, 594 ; Taney, C. J., in Passen- 
ger Cases, 7 How. (U. S.) 479, 480 ; Woodbury, J., ibid. 549. 

« Henderson ». Mayor, etc, of New York, 92 U. S. 259, 268; Railroad Co. v. 
Hosen, 95 U. S. 472 ; CoUins v. New Hampshire, 171 U. S. 30 ; Reid v. Colorado, 23 
Sup. Ct Rep. 92, 97 ; Compagnie Franfaise v. State Board of Health, 22 Sup. Ct 
Rep. 811. 

» Mugler V. Kansas, 123 U. S. 623. 661 ; Minnesota v. Barber, 136 U. S. 313; Hen- 
nington v, Georgia, 163 U. S. 299, 303 ; Scott v. Donald, 165 U. S. 58. 



198 HARVARD LAW REVIEW. 

this species of tax, which the Constitution plainly supposes to 
exist in the State governments ? " * 

To these illustrations many others may be added. Unless 
federal powers are limited to the eflfectuation of constitutional 
purposes, the authority to raise and support armies may be made 
a means of controlling municipal elections, and jurisdiction over 
navigable waters may control appointment or election to state 
offices, — in short, if Congress " may use a power granted for one 
purpose, for the accomplishment of another and very different 
purpose, it is easy to show that a constitution on parchment 
is worth nothing."* Yet this perversion of powers is the sole 
method presented to justify the proposed federal control of 
corporations. 

There is no constitutional authority for this method of construc- 
tion. *' Should Congress," said Mr. Chief Justice Marshall, " under 
the pretext of exercising its powers, pass laws for the accomplish- 
ment of objects not intrusted to the government, it would become 
the painful duty of this Court to say that such an act was not the 
law of the land." ® The federal government was given the powers 
necessary or proper to enable it to accomplish the purposes for 
which it was created. The fact that a power could be used both 
for constitutional and unconstitutional purposes was not a reason 
for withholding it from the federal government " No power, of 
any kind or degree, can be given, but what may be abused ; we 
have, therefore, only to consider whether any particular power is 
absolutely necessary. If it be, the power must be given, and we 
must run the risk of the abuse, considering our risk of this evil as 
one of the conditions of the imperfect state of human nature, where 
there is no good without the mixture of some evil." * 

The framers of the Constitution, then, in every instance, granted 
powers •' commensurate to the object " to be attained.* 

That every power given should, as Algernon Sidney said, be 
employed " wholly for the accomplishment of the ends for which 
it was given " ® is therefore the one essential principle which applies 
to every federal jurisdiction. Unless this principle be accepted 

I Federalist No. 33. 

s Senator Hayne, April 30, 1824. Annals, i8th Cong., ist Sess., Vol. I. pi. 648. 

* McCulIoch V, Maryland, 4 Wheat. (U. S.) 316; Hoke v. Henderson, 4 Dev. 
(N. C.) 12. 

* Remarks of James Iredell in Convention of North Carolina, 4 Elliot Deb. 95. 

* Edmund Randolph in Convention of Virginia, 3 Elliot Deb. 70. 

* Discourses on Government, Ch. I. § i. 



CONGRESS, AND REGULATION OF CORPORATIONS. 199 

" no power could be delegated nor could government of any sort 
subsist." ^ To those opponents of the Constitution who were not 
satisfied with this appeal to necessity and to the honesty of gov- 
ernment and who insisted that Congress, being the judge of the 
necessity and propriety of its acts, might pass " any act which it 
may deem expedient for any . . . purpose," Hanson replied " that 
every judge in the union, whether of federal or state appointment 
. . • will have a right to reject any act handed to him as a law, 
which he may conceive repugnant to the constitution."* 

Further security against the perversion of powers to unintended 
purposes could not be given. Should these principles of constitu- 
tional construction now be abandoned, should the Constitution be 
made as broad as the results which federal powers may accomplish, 
and then in turn these powers be extended to serve the needs of 
the new government thus created, it is obvious that the Constitu- 
tion has ceased to exist' 

No such methods of construction have yet been sanctioned. It 
is still true, as Hamilton said, that " the propriety of a law in a 
constitutional sense, must always be determined by the nature of 
the power upon which it is founded." 

It is clear, then, that the Constitutional Convention did not in- 
tend to give Congress power to tax or to prohibit commerce 
among the states, and that the nature of the power upon which it 
is sought to found such a jurisdiction fails to support it. As 
Mr. Chief Justice Fuller very forcibly remarked, "under the 
Articles of Confederation the States might have interdicted inter- 
state trade, yet when they surrendered the power to deal with 
commerce as between themselves, to the general government, it 
was undoubtedly in order to form a more perfect union by freeing 
such commerce from State discrimination, and not to transfer the 
power of restriction." * 

E, Parmalet Prentice, 
35 Wall Street, New York. 

> James Bowdoin, Convention of Massachusetts, 2 Elliot Deb. 84-85. 

* A. C. Hanson, " Remarks " in Ford, Pamphlets on the Constitution 217, 234. 

' " Every implication of a grant (of power to Congress) is confined to such as are 
direct and both necessary and proper, in the usual and natural acceptance of the terms, 
else it leads to unlimited power. Every means becomes in its turn an end, and thus 
justifies the use of means still more remote, until absolute power is attained." Reso- 
lutions of Legislature of South Carolina; adopted Dec. 18, 1840; copied in Cong 
Globe, 26th Cong., 2d Sess., p. 123, Jan. 25, 1841. 

^ Champion v. Ames, supra. 



Harvard Law Review. 



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Rights of the Parties to a Contract of Affreightment after the 
Vessel has been Justifiably Abandoned. — It has long been settled that 
the sailor who abandons his ship can recover no wages,^ and that the master 
who fails to bring his cargo to the port designated can collect no freight ' — 
not even a pro rata amount on quasi-contract for bringing the goods part 
way.' It is equally well settled that, when the vessel's safety is sufficiently 
menaced by the perils of the sea, the master may abandon her without in- 
curring liability for breach of contract.* In recent years, however, frequent 
contentions have arisen regarding the rights of the parties to the contract of 
affreightment after the vessel has been abandoned and rescued by salvors. 
In England it was at first held that the contract was entirely ended by the 
act of abandonment ; * but later decisions hold that leaving the vessel under 
these circumstances is simply a justifiable repudiation of the contract, of 
which the other party may Uke advantage, and the courts decline to state 
what would be ruled if the ship-owner should follow and regain possession 
from the salvors before the cargo-owner has acted.* Within a few weeks the 
United States Supreme Court, although not going to the extent of holding 
the contract at an end, has decided that "the abandonment, at least, gives 
an irrevocable power to the cargo-owner to decline to be further bound. " 
The Eliza Lines^ U. S. Sup. Ct, Oct 30, 1905. 

No fault can be found with the result reached in any of the cases ex- 
amined, for in all of them the owner of the cargo had suffered considerable 
injury from the act of abandonment ; but it is impossible to subscribe to all 

1 Lewis V. The Elizabeth and Jane, i Ware (U. S.) 41. 
s Post and Russell v. Robertson, i Johns. (N. Y.) 24. 

* See The Kathleen, L. R. 4 A. & K 269. 

* The Amo, 8 Aspin. 5. 
» The Kathleen, supra. 



NOTES. 20 1 

the reasoning they contain and the inferences to be drawn therefrom. It 
does not seem sound to say that the act of abandonment necessarily ends 
the contract, or that the first one of the parties who obtains possession of 
the derelict has the right to elect whether or not the contract shall continue 
to be binding, or that the cargo-owner may always rescind when the ship 
has been deserted. The cases are clearly analogous to those of impossi- 
bility, danger,* or sickness,^ where the party affected is always excused from 
liability for not going on under the contract, but where the future rights of 
the parties are dependent, principally, upon the materiality of the breach, 
though, to a certain extent also, upon the subsequent conduct of the delin- 
quent party. So, here, if the result of an excusable abandonment should 
be to make the carrying out of the contract a different undertaking from 
that originally contemplated, neither party would be further bound ; ' but, 
if the breach be but a slight one, so that the cargo is not harmed nor its 
owner injured materially by the delay, and if the master should give prompt 
notice of his intention to proceed before the cargo-owner has changed his 
position, he should be allowed to go on, for it is not uncommon for the law 
to disregard a technical breach or permit a slight one to be cured.* Of 
course, as a practical matter, the breach will nearly always be material in 
these instances, but a case can easily be conceived in which the storm un- 
expectedly subsides and the crew returns to the ship in a few hours. It is 
sometimes argued that the ship-owner should be allowed to continue, in 
analogy to the rule in cases of shipwreck, where the goods may even be 
transferred to another vessel and the freight earned ; ^^ but that is a differ- 
ent case, for there the crew are involuntarily separated from the vessel with- 
out any act of the will, and consequendy there is no real abandonment 



Liability of Foreign Real Estate to Collateral iNHERrrANCE 
Tax. — The very general adoption of inheritance and succession taxes has 
led to a careful examination by the courts of the theory on which they are 
based. An inheritance tax seems clearly to be not a tax on the property 
itself, nor on the legatee, but a tax on the privilege of succeeding to prop- 
erty on the death of the owner.^ The fact that the burden of the tax may 
ultimately fall on the property, and that the property is sometimes subjected 
to a lien until the tax is paid, has led some courts to construe the tax as one 
on the property as well as on the privilege ; * but this seems to confuse the 
nature of the tax with the method of its enforcement The right to take 
property by descent or devise is a privilege granted by the law, not a natural 
right ; and the sovereignty which grants it may impose conditions on it^ 
Theoretically, it would seem that the state might revoke this privilege at 
any time, and make itself the universal legatee of all decedents. Since suc- 
cession to property is by permission of the sovereign, the permission can re- 
late only to property over which the sovereign has control. A state has 
absolute dominion over all property within its territorial bounds, and may 

* Lakeman v. Pollard, 43 Me. 463. 

T Poussard v. Spiers, i Q. B. D. 410. 

* Jackson v. The Union Marine Insurance Co., L. R. 10 C. P. 125. 

* Bettini v. Gye, i Q. B. D. i8;j. 

» Shipton V, Thornton, 9 Ad. & £. 314. 

^ Magoun v. Illinois, etc., Bank, 170 U. S. 283. 
s Bittinger's Estate, 129 Pa. St 338. 



202 HARVARD LAW REVIEW. 

fix rules for its transfer, descent, and devolution.' In the case of person- 
alty each state allows the property within its jurisdiction to pass by the law 
of the state of the decedent's domicile : ^ two states, therefore, each grant a 
privilege, and each, it seems^ if it chose, could exact a tax. But in the case 
of realty, title passes by the lex rei sita^ and that state alone controls the 
privilege of succession.^ Where, however, the testator has directed the 
sale of his foreign real estate, it has been argued that an equitable con- 
version is worked, and that therefore the state of his domicile may impose 
a tax on the proceeds as personalty. A recent case before the Supreme 
Court of Pennsylvania upholds this position, consistently with previous de- 
cisions in that jurisdiction. In re Vanuxem*s Estate^ 6i Atl. Rep. 876. 

It would seem that the question as to whether a conversion has taken 
place must be determined by the law of the state where the land is situated, 
since that state alone has dominion over the property. But if it is determined 
that there is a conversion, succession will occur by the law of the decedent's 
domicile, as in the case of other personalty.^ The latter state may then ex- 
act a bounty for the privilege granted by it. An analogous question arises in 
the case of the interest of a deceased partner in foreign real estate belong- 
ing to the partnership, under the English rule that, in the absence of any 
agreement, partnership realty is ipso facto in the view of equity converted 
into personalty.^ In such event, the tax has been held valid,' and may be 
supported on the above reasoning. But if the conversion is not effected 
by the will itself, but is to be effected only at some future time, it seems that 
succession will take place by the lex rei sita^ and therefore the state of 
testator's domicile having granted no privilege can exact no tax. Where, 
for example, a testator devised foreign real estate to his wife for life, and 
upon her death directed its sale and the investment of the proceeds, the tax 
is not imposable by the state of the testator's domicile.' The fact that the 
proceeds of the sale are subsequently brought within the taxing state gives 
it no additional power, for the succession takes place at the moment of 
death, and the character of the property at that time is controlling.^^ 



Chaiotable Bequests to Unincorporated Societies. — When prop- 
erty is left to an existing, but unincorporated society, whose purposes 
are not charitable or religious, the beneficiary is commonly held incapable 
of taking, irrespective of the rule against perpetuities, by reason of its own 
inherent incapacity to hold legal title; and the bequest or devise fails.* 
But when property is left to a charitable or (where statutes of mortmain 
do not prevent it) to a religious society, expressly in trust for some religious 
or charitable purpose, the law is unsettled. By far the greater part of the 
cases hold such bequests or devises good, relying generally upon the stat- 
ute of 43 Elizabeth or some of its modem counterparts ^ which are designed 

* McCormick v. SulUvant, 10 Wheat. (U. S.) 192. 

* Sec Matter of Estate of Swift, 137 N. Y. 77, 86. 
^ Matter of Estate of Swift, supra. 

> See Re Stokes, 62 L. T. 176. Bat see Estate of Swift, supra, contra. 
' St w & 54 Vict. c. 39, §S 20, 22. 

* Forbes v. Steven, L. R. 10 £q. 178; Re Stokes, supra. But see Custance v. 
Bradshaw, 4 Hare 315. 

» Hale's Estote, 161 Pa. St. 181. w Drayton's Appeal, 61 Pa. St. 172. 

1 Carrier v. Price, (1891) 3 Ch. 159. 

« St 43 Eliz. c. 4. Laws of N. Y., c. 46, f 93. 



NOTES. 203 

to prevent charitable testamentary trusts from failing, either through in. 
definileness of the beneficiaries • or of the trustees.* Some courts hold the 
trusts valid without any statute, relying, perhaps, on the non-statutory power 
over charities which was derived by the courts of equity from the king 
as parens patria ;^ though no less an authority than Marshall was of the 
opinion that such trusts are invalid in the absence of statute, and denied 
the adequacy of the royal prerogative to mend so grave a defect as the 
non-incorporation of the designated trustee.* 

Where property is left, as before, to unincorporated charitable or religious 
societies, but by a devise or bequest absolute in form, and not expressly 
providing that it be held in trust, we find the courts using different reason- 
ing, and dividing along different lines. Some say flatly that such gifts are 
void for lack of any one capable of taking title.^ Others declare that the 
society may take,* and jump the difficulty that, in legal contemplation, the 
society does not exist, apart from its individual members. Even these 
courts, however, as a matter of practice, can only decree that the property 
be turned over to the treasurer, and rely on him for the rest.' Some courts 
draw a distinction between the power to take money for general pur- 
poses and the power to take land, on the ground that there is no practical 
objection to the former, whereas perpetual succession is requisite for the 
latter. ^^ Still other courts, though admitting that the unincorporated society 
cannot hold title, give it to the heirs of the testator in trust for the society." 
Most of the courts in this class of cases lay no stress on the charitable 
nature of the organizations, and argue as though they were concerned with 
unincorporated clubs or labor unions. It would seem in reason that an abso- 
lute devise should be dealt with exactly as if an express trust had been 
declared, for any bequest to a religious or charitable association is really 
a bequest in trust for the indefinite class which the association purports to 
benefit. Certainly the testator can rarely intend the members of the society 
to be either legal tenants in common for their own private purposes, or co- 
beneficiaries. Some cases have proceeded on this principle, and although 
the devise was absolute in form have recognized the applicability of the stat- 
utes concerning charitable trusts." The latest case in point, however, has 
adhered to the distinction. Fralick v. Lyford^ 107 N. Y. App. Div. 543. 



CoNsnTunoNALrrv of Delegation of Legislative Power — The 
maxim of Constitutional Law that legislative power may not be delegated 
is as broad as its boundaries are vague. In applying it courts are reluctant 
to declare a statute unconstitutional unless clearly repugnant to the Con- 
stitution.^ The cases involving the question in which statutes are upheld 

" Board, etc., of Rush Co. v, Dinwiddie, 139 Ind. 128. 

• M'Cord V. Ochiltree, 8 Blackf. (Ind.) 15. 

» Charles v. Hunnicutt, 5 Call (Va.) 311. Cf, M'Cord v, Ochiltree, supra, 

• Baptist Ass'n v. Hart's Ex'rs, 4 Wheat. (U. S.) i. 

T Owens V, Missionary, etc.. Society, 14 N. Y. 380. Cf, State, etc., Church v. 
Warren, 28 Ind. 338. 

« Ex'rs of Burr v. Smith. 7 Vt. 241. 

• Parker v, Cowell, 16 N. H. 149. 

10 Estate of Ticknor, 13 Mich. 44. Cf, Hadden v. Dandy, 51 N. J. £q. 154. 
" American, etc., Society v, Wetmore, 17 Conn. 181. 
M West V, Knight, part i, Ch. Gas. 134. 

1 Re Janvrin, 174 Mass. 514. 



204 HARVARD LA IV REVIEW. 

divide into three main classes, shading into each other. Under the first it 
is held that the operation of a law, deemed by the legislators expedient 
only on the fulfilment of certain conditions, may be made contingent upon 
such fulfilment by others than the legislators themselves, and the granting of 
the right to satisfy such conditions is not a delegation of legislative power. 
Thus, terms of court may be transferred from one town to another on con- 
dition that the citizens of the latter provide accommodations.^ On the 
other hand, the question of sufirage for women can probably not depend on 
the vote of the people at large, for then they would be deciding on the 
expediency of the law, irrespective of the legislators' judgment.* 

The second class includes the cases involving the distinction between ad- 
ministrative and legislative powers. The powers conferred vary so greatly, 
according as the scope of the statute is large or narrow, that courts find it 
difficult to draw the line. The cases concern largely the powers of boards 
and commissions, to which it is desirable to allow breadth of discretion be- 
cause of their superior fitness to meet conditions in their special field. A 
usual rule is that the power conferred is proper if it is to determine iJEurts on 
which the action of the law depends.^ Thus, there is little doubt of the 
power of a school board to select uniform text-books ; * it is going further 
to allow a stock commission to prohibit the sale of milk from any dairy it 
determines to be unsanitary ; * and still further to entrust a board of health 
with power to decree compulsory vaccination.^ Courts have doubtless gone 
great lengths in these cases in the laudable endeavor to secure to boards 
and commissions powers which, under modem necessities for specialization, 
can be efficiently exercised only by means of such agencies. 

The third class of cases forms a real exception to the maxim ; involving, 
namely, the principle (recognized from early times) that the delegation of 
powers of local self-regulation is valid." Here too the limits have been 
stretched, and legislative enactments dependent on acceptance by the 
voters in each locality are generally upheld when relating to matters of 
local concern.* At present there is litigation in the lower Massachusetts 
courts regarding delegation to town selectmen, not ordinarily considered 
a legislative body, of power to pass speed ordinances. A recent Massa- 
chusetts decision well illustrates the widening tendency. State fish com- 
missioners were sustained in their action under a statute allowing them to 
prohibit any discharge of sawdust into a stream if they determined that it 
occasioned injury to edible fish. Commonwealth v. Sissoriy 33 Banker & 
Tradesman 2216 (Mass. Sup. Ct., Oct. 17, 1905). The situation is not 
essentially difiierent from many in which the action was upheld as merely 
administrative, but the court unequivocally declares that the power con- 
ferred is legislative, but nevertheless allowable, and a parallel is drawn to 
cases upholding similar powera granted to state boards of health. In 
these it would seem that state boards were perhaps originally sustained in 
the exercise of their powers because such powers were allowed local boards, 
and the latter were considered to come within the local self-government 

* Walton V, Greenwood, 60 Me. 356. 

* Re Municipal Suffrage to Women, 160 Mass. 586 

* State V, Thompson, 160 Mo. 333. 

* Leeper v. State, 103 Tenn. 500. 
« State V, Broadbelt, 89 Md. ^i^, 
7 Blue V. Beach, IJ5 Ind. 121. 

* State ex rel. White v. Barker, 116 la. 96. 

* Wooman v. County of Hadson, 52 N. J. Law 398. 



NOTES. 205 

exception.^^ Possibly the present decision goes further than any other in 
its langnage,^^ but whether by extension of administrative powers or by 
analogy ¥rith the recognized exception, the trend of the courts is certainly 
towards the achievement in similar cases of the result reached in the 
principal case. 



Rights of a Life Tenant in a Private Cemetery. — Interests in 
burial lots may be granted either by a document under seal, or by any other 
agreement. If there is a conveyance under seal, the vendee obtains either 
a fee simple ^ or an easement,^ according to the tenor of the instrument and 
the construction of it warranted by circumstances.* If the sale of a burial 
lot is by mere oral or written agreement, no freehold estate or easement can 
have been passed. Although, in such cases, the courts commonly say that 
a mere license has been acquired/ yet they generally allow to these licenses 
most of the qualities of easements.' And indeed the true nature of the ven- 
dee's interest seems to be that of an equiuble right to an easement* A 
mere license expires with the death of the licensor ; but it is hard to believe 
that any court of equity would allow graves or gravestones to be interfered 
with by successors of vendors of burial lots, at least if they took with notice 
of the graves. The requisites for an equitable enforcement of agreements 
for easements seem all present in agreements for the sale of burial lots, 
even where there is no writing, — a complete and sufficient contract the terms 
of which are mostly established by custom, valuable consideration, and acts 
of part performance unequivocably referable to the supposed agreement.^ 
The practical result, that the graves are kept permanently undisturbed, is 
plainly in harmony with common sense and justice. 

Where one is only a life tenant of land, however, it is difficult to see how 
his powers can extend to selling burial lots in fee simple or as easements 
enforceable either at law or in equity, since a life tenant can neither convey 
away his land piecemeal nor incumber it with easements. When, however, 
the land has already been devoted to the business of conducting a private 
cemetery, considerations of justice and policy would allow the life tenant to 
continue the business, and consequently to sell burial lots ; for otherwise 
he is likely to receive little beneficial use of the land. The legal basis for 
such a rule is hard to find. The Supreme Court of the District of Columbia 
recently attained this result, on the analogy of a life tenant's right to con- 
tinue the operation of mines and quarries though the corpus of the estate is 
thereby diminished, or exhausted. Hiii v. Moore, 33 Wash. L. Rep. 549. 
The distinction, however, is clear between the mere severance of part of the 
physical substance of the inheritance by a life tenant with the right to work 

10 See Brodbine v. Revere, 182 Mass. 398. 

u C/. Nelson v. State Board of Health, 186 Mass. 330. 

^ Commonwealth v, Mt. Moriah Cemetery Ass'n, 10 Phil. (Pa.) 385. 
« Buffalo City Cemetery v. BuflFalo, 46 N. Y. 503. 

* See e. ^. in the case of church cemeteries, Richards v. Northwest, etc, Church, 32 
Barb. (N. Y.) 42 ; but contra. In re Brick, etc.. Church, 3 Edw. Ch. (N. Y.) 155. 

* Dwenger v. Geary, 113 Ind. 106; Partridge v. First, etc., Church, 39 Md. 631; 
McGuire v. Trustees, etc., of Cathedral, 54 Hun (N. Y.) 207. 

* See Perley, Mortuary Law 178. 

* Moreland v. Richardson, 22 Beav. 596; Conger v, Treadway, 50 Hun (N. Y.) 
451. 

7 See Wiseman v. Lucksinger, 84 N. Y. 31, 38. See also Gale, Easements, 7th ed., 

58,59^ 



206 HARVARD LAW REVIEW. 

open mines, and an actual incumbrance of the inheritance with easements, 
or the complete extinguishment^ by a conveyance in fee, of the entire estate 
in the land ; yet^ since the only alternative appears to be a decision, the 
practical effect of which is to deprive the life tenant of the beneficial use of 
the land, perhaps this loose analogy furnishes the best, though an unsatis- 
factory, avenue of escape from a perplexing problem. 



CONSTITUTIONALrrY OF A StATE TaX ON MOVABLES SmjATED OUTSIDE 

THE State. — The power of a state to tax persons and things within its con- 
fines is limited by the clause of the Constitution, that no person shall be 
deprived of property without due process of law. In considering what 
forms of taxation do not violate this clause, two kinds of taxes must be 
recognized. Imports, inheritance taxes, licenses, etc. are examples of the 
first class. They are charges imposed by the state upon persons for privi- 
leges granted to them.* The nature of the second class is entirely different 
In levying taxes of this sort, the state is apportioning the expenses of gov- 
ernment among all its citizens. Two methods of making this apportionment 
which satisfy the requirement of due process of law may be suggested. 
Each person can be called upon to bear a proportion of the expenses of 
government commensurate to the proportion of benefit he has received 
from the state. The second method would be to apportion the taxes 
among the citizens of the state in proportion to their relative abilities to pay 
them.'^ A tax upon a person the amount of which is determined by the 
value of the property he owns within the state is an example of the first 
method of apportionment, because the best measure of the amount of pro- 
tection derived from the state is the amount of property owned. A tax on 
incomes on the other hand exemplifies the tax upon a person in proportion 
to his ability to pay. Of course these are but rough approximations, but so 
long as either principle underlies the tax it is valid. 

Does a tax upon a person based upon the amount of personal property 
owned by him outside of the state meet either requirement ? Such a tax 
has been supported by some decisions,* by the text-writers,* and by long 
usage ; but it has at length been declared unconstitutional by the Supreme 
Court of the United States. Union^ etc^ Company v. Kentucky^ U. S. Sup. 
Ct., Nov. 13, 1905 (two judges dissenting). This result is the logical out- 
come of two previous decisions,* and of the proposition (which the court 
assumes as undeniably settled^ that realty without the state cannot be taxed 
at the domicile of the owner.' Certainly such a tax is not a charge upon a 
person based upon the amount of protection he derives from the state, for 
the maxim mobilia sequuntur personam has been entirely discredited.' It 
has been said that, being based upon the wealth of a citizen, it is a tax upon 
him graduated according to his ability to pay." This is not, however, a tax 
upon a person based upon his ability, as compared with the ability of other 



1 Matter of Swift, 137 N. Y. 77, 88; Knowlton v. Moore, 178 U. S. 41, 47. 
« See Beale, Foreign Corporations, § 483. 

* Wheaton v, Mickel, etc., May, 63 N. J. L. 525. 

* See Wharton, Conflict of Laws, 3d ed.. §80 a. 

* Loaisville, etc., Co. v, Kentucky, 188 U. S. 385; Delaware, etc., Co. v, Pennsyl 
vania, 198 U. S. 341. 

* Louisville, etc., Co. v. Kentucky, sitpra^ at 198. 

^ See Hoyt v. Commissioners of Taxes, 23 N. Y. 224. 



NOTES. 207 

citizensy to pay, since under it, A who owns one million dollars worth of 
realty and no personalty escapes taxation, while 6 who owns one hundred 
dollars worth of personalty is taxed ; — and yet obviously A is more able to 
pay than is B* If the state can collect a tax of this sort, solely from the 
owners of personalty lying without the jurisdiction, a tax on red-headed 
persons to the exclusion of others, being scarcely less arbitrary, would seem 
to be legal. Taxation is relative ; the amount that A pays must bear some 
fair ratio to the amount that B pays, and as the present case infringes upon 
this principle, by taxing A without taxing B who is equally able to pay, it is 
invalid. It might be suggested that, since this form of taxation has been 
practiced for a long time, it has become sanctioned by law and hence is 
due process. The court, however, seems properly to have considered that, 
for the decision of the question at issue, a broader concept of due process 
of law is required. 



'* Tentative" Trusts in Savings Bank Deposits. — A trust may be 
created without consideration either by a transfer of the property to another 
as trustee,^ or, since Lord Eldon's time, by a mere declaration by the owner 
that he holds the property in trust* Though a power of revocation may be 
reserved,* a trust without such power, when once created, is irrevocable.* 
These fundamental principles have sometimes been lost sight of by the 
courts in considering cases of trust deposits in savings banks, a common 
form of gratuitous trusts. Massachusetts, for example, arbitrarily requires 
notice to the beneficiary.* New York also appears to depart from prin- 
ciple. By a case decided in that jurisdiction last year, it was held, contrary 
to previous decisions of the lower court,* that the mere fact that a deposit 
stands in the depositor's name as " trustee " for another is not ground for 
holding that an irrevocable trust was created, but establishes the creation of 
a "tentative " trust merely, revocable by the depositor in his lifetime.^ As 
a question of evidence, the decision is not unreasonable, for in view of the 
common practice of making deposits in the form of trust accounts to evade 
some rule of the bank,* it is perhaps unsafe to find from the mere form of 
deposit an actual intent to create a trust ; and if such intent is not found, 
no trust should be held created.* But the decision strikes deeper than 
that ; it assumes that a trust was created, but treats it as revocable. More- 
over, the court says that if the depositor dies without having revoked the 
trust, the presumption arises that an absolute trust was created as to the 
balance on hand at his death. Much can be said, it is true, in favor of 
the result of the decision, for it gives effect to the intention with which such 
deposits are commonly made by the humbler class, namely, to enjoy full 

^ Van Cott V, Prentice, X04 N. Y. 45. See also Ames, Cases on Trusts, 2d ed., 

233n- 

' Ex parte Pye, 18 Ves. 140. 

* Perry, Trusts, <th ed., § 104. See also Ames, Cases on Trusts, 2d ed., 233 n. 

* See bickerson's Appeal, 115 Pa. St. 198, 210. 

* Clark V. Clark, 108 Mass. 522. 

* Robertson v. McCarthy, 60 N. Y. Supp. 327 ; Jenkins v. Baker, 78 N. Y. Supp. 
1074. 

' Matter of Totten, 179 N. Y. 112. 

B As a rule limiting individual deposits, or giving a hisher rate of interest on small 
deposits. See Brabrook v. Boston Bank, X04 Mass. 228 ; Weber v, Weber, 9 Daly 
(N. Y.) 211. 

* Brabrook v. Boston Bank, wpra. 



208 HARVARD LAW REVIEW. 

ownership of the money during life, but to secure its passage to the named 
beneficiary upon death. While it may be possible to effect this intention 
without violating fundamental principles, it is not clear that the New York 
decision is based upon the correct theory. The transaction must plainly 
be taken as a present trust if anything, else we meet two difficulties : firs^ 
that we are allowing what is in substance a testamentary disposition in irreg- 
ular form,^® and second, that equity will not enforce an incomplete volun- 
tary trust." To call it a present trust and still effectuate the depositor's 
intention can only be done, perhaps with some effort, by finding a power of 
revocation impliedly reserved to the depositor, who, while the trust remains 
unrevoked, is trustee for himself for life, with full power of disposal, re- 
mainder to the named beneficiary. This theory, however, admittedly 
somewhat over-nice, does not seem to be the one the court proceeds upon, 
the apparent reasoning being that a trust of this kind is in its nature revo- 
cable during life, but made absolute by death. The idea of death perfect- 
ing the trust is clearly indefensible, for the trust if ever created was created 
at the time the deposit was made, and the sole question is whether the 
depositor then intended to create a trust of the complex character described. 
That the doctrine of tentative trusts will grow by application to analogous 
cases is shown by a recent New York decision, Lattan v. Van Ncss^ 95 
N. Y. Supp. 97, which held merely tentative a trust created by transfer of 
the deposit and the bank book to another as trustee for a third party. Un- 
less this decision can be rested on a similar theory to that suggested above, 
it would seem a greater departure from principle than the earlier case, for 
the irrevocability of a trust created in this way was established much earlier 
and with a sounder basis than that created by mere declaration. 



Effect of Acceptance on Right to Sue for Defective Performance. 
— A question constantly arising under a contract of sale is whether accept- 
ance of a tender of goods differing from the terms of the contract as to 
quality, quantity, time or place of delivery prevents a recovery of damages 
for the imperfect performance. If an express warranty of quality accom- 
panying the sale has been broken, courts generally are agreed that a right 
of action survives acceptance.^ But there is confusion in cases of implied 
warranties. Cases of this kind arise most frequendy in reference to the 
merchantable quality of goods. The weight of authority is that mere ac- 
ceptance does not prevent the buyer from afterward recovering for breach 
of promise, either by a separate action, or by counter-claim in an action 
brought by the seller.^ Some courts, however, hold that such acceptance 
precludes any claim for defective performance.* On a similar question as 
to time of delivery, the Kentucky court recently stood evenly divided as to 
whether the buyer waived any cause of action for delay. Lucik Min. Co. v. 
Fairbanks, Morse <&• G?., 87 S. W. Rep. 11 21. 

Though most courts in this class of cases, as in cases where inferior goods 
have been delivered, hold that mere acceptance does not prevent the buyer 

w See Nicklas v. Parker, 61 Atl. Rep. 267 (N. J.). 
" Sec Bartlett v. Remington, 59 N. H. 364. 

1 See Mechem, Sales, ist ed., § 1395. 

* English V. Spokane Commission Co., 57 Fed. Rep. 451. See Williston's Cases 
on Sales, 2d ed., 779, note i. 

* Studer v, fileistein, 115 N. Y. 316. See 16 Harv. L. Rev. 465, 468. 



NOTES. 209 

from suing for delay,* there is considerable authority to the contrary, on 
the ground that he has waived his right.* 

If by " waiver " these courts mean a gratuitous renunciation of a cause 
of action, once accrued, the cases cannot be supported, for such waiver is 
really a release, and to be binding must be founded on consideration ; * 
though waiver of a defence need not be.^ The term " waiver " is, however, 
used loosely in the cases, and it would be un£air to infer that courts always 
mean to allow a gratuitous release of a cause of action, for it is often pos- 
sible to find consideration. The seller, after having broken his promise, is 
not bound to make a subsequent tender, so that such tender, being a legal 
detriment, may constitute the consideration for an accord. By this use of 
the term " waiver," then, courts may be taken to mean a contract to waive 
or, more accurately, an accord and satisfaction. Viewed in this way, the 
question becomes mainly one of fact, whether the parties actually made this 
new agreement It should be clear that, when the buyer explicidy states that 
the subsequent tender is not taken as satisfaction, no new agreement can be 
found." On the other hand, it should be equally clear that when the seller 
states or his conduct implies that the tender is an offer to an accord, the 
acceptance completes an accord and satisfaction which precludes the buyer 
from claiming damages for defective performance. The main conflict in 
the decisions is when neither party has said anything. In such a case it is 
difficult to find mutual assent to the new agreement. It seems more natural 
to suppose that the seller^s late tender is an attempt to carry out the original 
contract to the best of his ability. His action, therefore, amounts to a 
waiver on his part of his right not to be compelled to make a late tender, 
which, as it is not a release of a cause of action, obviously requires no con- 
sideration. All doubts should be construed in favor of the buyer, since the 
seller alone has been at fault. Whenever, accordingly, tender and accept- 
ance are made without explanation on either side, it may well be ruled, as 
a matter of law, that there is no evidence upon which a jury could find that 
the seller had satisfied the burden of proving an accord and satisfaction. 



RECENT CASES. 

Admiralty — Torts — Liability of Ship for Wilful Tort of Sea- 
man. — One of the crew of a steam-tug, acting outside the scope of his employ- 
ment, wilfully blew ofiE steam and hot water from the boiler so as to deluge the 
side of another tug. Held, that the former vessel is liable for the damage 
done. Th€ BulUy, 138 Fed. Rep. 170 (Dist Ct., S. D., N. Y.). 

At common law, a master is liable only for those wilful acts of his servants 
which are done within the scope of their employment. Mott v. Consumers' Ice 
Co., 73 N. Y. 543. And in admiralty by the English rule, it is doubtful whether 
the vessel can be proceeded against where the owner would not be personally 

« Redlands Oranee Growers' Ass'n v. Gorman, 161 Mo. 203. See Garfield & Proc- 
tor Coal Co. V. Fitchburg R. R. Co., 166 Mass. 119. 

^ Roby V. Reynolds, 72 N. Y. 487 ; Minneapolis Threshing Machine Co. v. Hutch- 
ins, 65 Minn. 89. 

• See Anson, Contracts, loth cd., 334; 18 Harv. L. Rev. 365. 

T Sigourney v. Wetherell, 6 Met. (Mass.) 553; Uhler v. Farmers* National Bank, 64 
Pa. St. 406. 

» Jones V. National Printing Co., 13 Daly (N. Y.) 92. 

14 



2IO HARVARD LAW REVIEW. 

liable. The Druid, i Wm. Rob. 391, 399; see also Carter, Carriage by 
Sea, 4th ed., § 707. In America, however, the vessel is liable regardless of the 
personal responsibility of the owner, on the theory that the vessel itself is the 
wrongdoer. United States v. Brig Afalek Adhely 2 How. (U. S.) 210, 233; 
The China, 7 Wall. (U. S.) 53, 68. But if the vessel itself is not the instru- 
ment in the wrongdoing, there seems no ground for holding it liable as the 
offender ; and in such a case, therefore, our courts would probably follow an 
English decision that where the crew of one vessel cut the cable of another 
alongside, the former vessel was not liable. Currie v. Af^ Knight, [1897] A. C. 
97. Whether the vessel is the instrument may often be difficult to deter- 
mine; and perhaps no more definite test can be laid down than that it may 
be so regarded, whenever the vessel itself or any integral part thereof is em- 
ployed in the wrongdoing. Here the vessel seems clearly the instrument, so 
that the general American doctrine applies. 

Agency — Creation op Agency — Whether Special Police Officer 
IS Agent of Employer. — The charter of New York City provided that the 
police board might, on application, appoint special patrolmen to be paid by 
the applicant, but to be subject to the orders of the chief of police, and to " possess 
all the powers and discharge all the duties of the police force, applicable to reg- 
ular patrolmen.*' A special patrolman, appointed under this provision on the 
application of the defendant, arrested the plaintiff. Held, that, in an action 
for false imprisonment, the defendant is not liable for the arrest, as he did not 
specifically request it. Samuel v. Wanamaker, 107 N. Y. App. Div. 433. 

This question arises on statutes usually falling into one of two classes. The 
first class, for instance, makes the conductors or station agents of railroads, by 
virtue of their positions as employees, conservators of the peace, with power 
and duty to arrest disorderly persons on trains or in stations. The second class 
is typified by the statute in the present case. In the former class it seems that 
the employee is not actually made an officer of the state, but rather that the 
powers of the railroad are increased to better enable it to perform its duties as 
a common carrier. The railroad, therefore, is held liable for the misuse of this 
authority. /Cing v. Illinois Central Rd. Co,, 69 Miss. 245. But in the prin- 
cipal case it is clear that the special patrolman was an officer of the state, act- 
ing as a member of the police force, and that the defendant would have no 
power to restrain him from performing his duty. Cf. Sharp v. Erie Rd. Co., 90 
N. Y. App. Div. 502. That he was paid by the defenaant is not material. 
Woodhull V. Mayor, etc., of Brooklyn, 150 N. Y. 450. The patrolman could 
not be the servant of the defendant while performing acts as an officer of the 
state. Railway Co. v. Hackett, 58 Ark. 381. 

Attachment — Of Realty — Effect. — The plaintiff, having brought an 
action in a federal court, attached certain realty of the defendant. Later, a 
receiver under state insolvency proceedings against the defendant took posses- 
sion of the property, and instituted proceedings in the state court to enjoin the 
federal marshal from interfering therewith. The plaintiff moved the federal 
court to enjoin the action of the receiver. Held, that the motion must be de- 
nied. Ingraham v. National Salt Co.^ 139 Fed. Rep. 684 (Circ. Ct, E. D., 
N. Y.). 

It is generally recognized that comity forbids interference by one court of 
concurrent jurisdiction with property in the '* possession " of another. Buck v. 
Colbath, 3 Wall. (U. S.) 334. The case under consideration turns on the ques- 
tion whether such " possession " is obtained by the attachment of realty. The 
court holds that it is not ; and this result is supported by another circuit court 
decision. Re Hall 6r* Stilson Co., 73 Fed. Rep. 527. But it is as squarely 
opposed by a holding and a strong dictum in circuit courts of appeal. Gates v. 
Buckie 53 Fed. Rep. 961; Southern^ etc., Co. v. Folsom, 75 Fed. Rep. 929. 
Though the federal authorities are divided there are several state dicta to the 
effect that there is no possession in a court by virtue of the attachment of 
realty. Scott v. Manchester Print Works, 44 N. H. 507. It is true that in the 
case of personalty attached and corporeally taken into the possession of an 



RECENT CASES. 211 

officer, an attempt by another court to take custody of the same goods would 
precipitate an unseemly physical struggle. Yet no such result need follow in 
the case of realty where actual possession is never taken on attachment. There- 
fore the policy of the rule of non-interference does not apply. 

Attorneys — Compensation and Lien — Lien on Fund Recovered 
FOR Person Other than Client. — Minority stockholders of a corporation 
brought action against certain directors, with wnom the corporation was joined 
as defendant, to recover dividends wrongfully paid. After commencement of 
the action, but before trial, the defendant directors repaid to the corporation 
the full amount claimed. Held^ that the plaintiffs' attorneys are not entitled to 
have their claim for compensation declared a Hen thereon. Matter of Meighan, 
io6 N. Y. App. Div. 599. 

The New York Code of Civil Procedure, § 66, gives an attorney a lien upon 
his client's cause of action that cannot be afiEected by any settlement between 
the parties before judgment. But here the attorneys were not retained by the 
corporation ; and the general rule is that an attorney must look to his client 
alone for his fee, not to other persons who may be benefited by the action. 
Scott V. Dailey^ 89 Ind. 477. It is true that the minority stockholders merely 
set the judicial machinery in motion, and that in effect the action is that of the 
corporation. Pom. Eq. Jur., 3d ed., § 1095. And doubtless they should be 
given the right of reimbursement for reasonable attorney's fees from the fund 
recovered in an action which the corporation should have brought. Meeker v. 
Wintkrop Iron Co.y 17 Fed. Rep. 48; and see Trustees v. Greenough^ 105 U. S. 
527. But the attorneys should look to their clients for remuneration, and not 
be given a direct lien on this fund. If the minority stockholders had agreed 
that their attorneys should have one-quarter of the judgment recovered, no one 
would maintain tnat the attorneys would have a lien for this amount against the 
fund paid to the corporation. There is, however, direct authority against this 
decision. Grant v. Lookout Mountain Co.^ 93 Tenn. 691 ; Central Rd,^ etc^ of 
Georgia v. Pettus, 113 U. S. 116, 124. 

Attorneys — Compensation and Lien — Priority over Right of 
Set-off. — The defendant had obtained a judgment against the plaintiff for 
costs. In the same cause of action, though upon an independent appeal 
in a difiEerent court, the plaintiff secured a jud^^ent against the defend- 
ant upon which her attorney claimed a lien for disbursements. The defend- 
ant's motion to set off his judgment against the plaintiff's judgment was 
denied. The defendant appeaded. Held, that the attorney's lien has priority 
over the right of set-off. Smith v. Cayuga Lake Cement Co., 107 N. Y. App. 
Div. 524. 

The conflict in England on this question between the courts of Common 
Pleas and the King's Bench was finally settled after the Judicature Acts of 1873 
in favor of the equitable rule that the attorney's lien is subject to a set-off. See 
Jones, Law op Liens, 2d ed., § 215. There is a singular conflict in this 
country. If the client has assigned the judgment to his attorney before an 
attempt at set-off has been made, the attorney's right will defeat the set-off. 
Ripl^ V. Bully 19 Conn. 53; contra, Fitzhugk v. McKinney, 43 Fed. Rep. 461. 
But if no such assignment has been made, the courts are about evenly divided 
as to whether the lien is prior. The New York court has already allowed the 
lien to prevail when the judgments were rendered in separate actions although 
between the same parties. This court now applies the rule where the judg- 
ments are rendered in the same action. The attorney's lien is a derivative 
claim depending upon the interest of his client in the judgment. If this in- 
terest in the hands of the client is subject to an existing right of set-off, 
logically it is difficult to see how the attorney has a greater right. Cf National 
Bank of Winterset v. Eyre, 8 Fed. Rep. 733. 

Bankruptcy— -Preferences — Giving Possession under a Prior 
Bill of Sale. — More than four months before bankruptcy, A gave B a bill 
of sale of her stock in trade as security for a loan, but the bill of sale was not 



212 HARVARD LAW REVIEW. 

recorded, nor did B take possession. Within four months of bankruptcy pro- 
ceedings, A gave B possession of the goods under the bill of sale, being at that 
time, as B had reasonable ground to believe, insolvent. Htldy that the trans- 
action does not constitute a preference. Christ v. Zehner^ 6i Atl. Rep. 822 
(Pa.). 
For a discussion of the principles involved, see 18 Harv. L. Rev. 606. 

Bankruptcy — Preferences — Secured Creditors. — A contract for 
a sewer, let in September, 1903, by a municipal corporation, provided for with- 
holding ten per cent of the monthly payments, and gave the corporation's 
en^neer authority to order direct payment by the city to firms supplying ma- 
chinery to the contractor, if there was reasonable cause to believe he was 
unduly delayin^^ payment. In October, 1904, the contractor was adjudicated 
bankrupt on his own petition. The engineer thereafter directed payment to a 
machinery firm. Held^ that the power conferred on the engineer is not annulled 
by the contractor's bankruptcy, and the trustee in bankruptcy cannot prevent 
payment by the city. In re Wilkinson^ [1905] 2 K. B. 713. 

The English Bankruptcy Act makes voidable pavments or transfers of prop- 
erty by the bankrupt during three months prior to bankruptcy proceedings, if a 
preference was intended. 46 & 47 Vict. c. 52, § 48. Had tne contract in the 
present case been made during the statutory period, it could have been avoided 
by the trustee, if the intent to prefer existed. Or if the consideration for the 
contract had been given by the bankrupt within the three months, there would 
also have been a preference except in jurisdictions where a transfer is valid if 
contracted for before the statutory p>eriod. See Marvin v. Bushnell^ 36 Conn. 
353. But in the present case, belore this period began, the bankrupt had per- 
formed his part of the contract, and sufficient funds had been retained by the 
corporation from which to make payment. One creditor got a prioritv after 
bankruptcy, but it was not caused by an act of the bankrupt done within the 
statutorv period by himself or through an agent. He transferred his property 
before the time when the trustee can set his transactions aside on the ^und 
of preference. There was no fraud, for sufficient consideration was received. 

Bills and Notes — Checks — Right of Set-off by Drawer of Dis- 
honored Certified Check. —The drawer of a check had it certified before 
delivery to the payee. Before it was presented, the bank stopped payment and 
the check was disnonored. The drawer recovered the check from the payee 
upon paying its face value. Held, that the payee is the bank's creditor at the 
time of insolvency, and the drawer, who becomes a creditor afterwards, cannot 
set off the amount of the check s^ainst his indebtedness to the bank. One 
justice dissented. Schlesinger v. Kurzrok^ c^ N. Y. Supp. 442. 

A bank, by certifying a check, puts itself in the position of the acceptor of a 
bill of exchange and becomes primarily liable to the holder. Merchants^ Bank 
V. State Bank, 10 WaU. (U. S.) 604; N. Y. Neg. Inst. Law, § 323. But the 
position of the court is not sound in considering the drawer in the present case 
as a mere outsider acquiring a claim against the bank after its insolvency. 
The drawer of a check who has it certified before delivery to the payee, is still 
liable to the holder. Minot v. Russ^ 156 Mass. 458. He is not liable on 
the original debt, however, for the payee surrenders his direct claim against 
the drawer for a direct claim against the bank and a secondary claim against the 
drawer. The cases show that the drawer's liability is the same as that of the 
drawer of a bill of exchange. He is surety for tne acceptor and liable only 
after the acceptor defaults. A surety can set off his pajrments made in behaa 
of the principal against his indebtedness to the principal, even though such 
payments are made after the latter's insolvency. Cosgrave v. McKasy, 65 
Minn. 426. The minority opinion, therefore, seems to be correct. 

Bills and Notes — Defenses — Notice to Indorsee. — The holder of 
a promissory note, excused under the Negotiable Instruments Law from pre- 
sentment for payment because of the death of the maker and the non-appoint- 
ment of a personal representative, brought an action against the indorser. Held^ 



RECENT CASES. 213 

that the holder is not also excused from giving notice of dishonor to the 
indorser. Reed v. Spear, 107 N. Y. App. Div. 144. 

At common law when no place of payment was specified, before the indorser 
could be charged, presentment had to be made to the personal representative of 
a deceased maker, or if none had been appointed, at the maker's house. Price 
V. Young, I Nott & M. (S. C.) 438. In no case did the death of the maker 
dispense with the necessity for notice of dishonor to the indorser. Oriental 
Bank V. Blake, 22 Pick. (Mass.) 206. By the Negotiable Instruments Law, 
adopted in New York, presentment otherwise than to the deceased maker*s 
personal representative is excused. L. 1897, c. 612, §§ 136, 142. But when 
presentment is thus excused the instrument is regarded as dishonored by non- 
payment just as though payment had been refused. Ibid, § 143. So although 
there is no express provision covering this point, yet as the common law rule 
that notice of dishonor must be given the indorser is embodied in the Negoti- 
able Instruments Law, §§ 160, 186, with certain exceptions not applicable here, 
the present decision is undoubtedly a sound construction of that law. 

Bills op Peace — Bill by Assignee of a Corporation for Unpaid 
Stock Subscriptions. — Held, that the assignee of an insolvent corporation 
may join its stockholders in a single bill in equity to recover the unpaid 
balances of their stock subscriptions, although no accounting is necessary since 
it will require all unpaid subscriptions to pay the debts. Cook v. Carpenter, 
Appeal of Upper, 61 Atl. Rep. 799 (Pa.). 

Although it IS commonly said that equity will take jurisdiction to prevent a 
multiplicity of suits, the cases are not harmonious as to the precise limits of the 
doctrine. Most authorities require that there must appear at least a question 
common to all the actions. Hale v. Allinson, 188 U. S. 56. And such seems 
to be the law in Pennsylvania. Youngs Appeal, 3 Penny. (Pa.) 463; Pro- 
prietors* School Fund y, Heermans, i Kulp (Pa.) 469; but cf, Cumberland 
Valley Rd, Co.'s Appeal, 62 Pa. 218. Nor is it sufficient that ^e separate 
rights arose in connection with the same general transaction. The Lehigh 
Valley R. R, Co. v. McFarlan, 30 N. J. Eq. 135, 31 N. J. Eq. 730. Thus, 
bills have been allowed by a creditor or receiver against stockholders to 
determine such common questions as the necessity for a call, or the amount of 
assessment when stockholders* liability is limited. See Pfohl v. Simpson, 
74 N. Y. 137. In the rare instances in which pecuniary relief has been 
granted in this form of action in equity, the various claims appear to have been 
for liquidated amounts. See The German, etc,. Ins, Co, v. Van Cleave, 191 111. 
410. Since in the principal case the obligations are upon separate contracts 
and no common controversy of law or fact is disclosed, the equity of the bill 
must be in avoiding many suits for liquidated claims. But it seems that the 
legal remedies for such claims are not yet considered inadequate. Cf. Hale 
v. Allinson, supra, 102 Fed. Rep. 790, 793. 

Cemeteries — Life Tenant's Right to Grant Burial Permits. — The 
owner of a tract of land, on which he had conducted a private cemetery, deeded 
it to trustees for the use of his wife for life. Held, that the life tenant has the 
right to continue granting burial permits, which confer a permanent right to the 
use of the soil for the purposes of graves. Hill v. Moore, 33 Wash. L. Rep. 
549 (D. C, Sup. Ct.). See Notes, p. 205. 

Charities — Bequests — To Unincorporated Societies. — A testator 
made a bequest to an unincorporated Spiritualist society *'*' to be used by said 
society in such manner as it may deem most expedient for the development 
and advancement of spiritualism at Freeville, Tompkins County, N. Y." Held, 
that the gift fails. Fralick v. Lyford, 107 N. Y. App. Div. 543. See 
Notes, p. 202. 

Constitutional Law — Obligation of Contracts — Interpretation 
BY Supreme Court. — Under a constitutional provision which invested the 
legislature with full power to correct abuses by public service companies, the 
legislature passed a law empowering municipalities to fix a maximum water 



214 HARVARD LAW REVIEW. 

rate, with the provision that this should in no case interfere with existing 
contracts. The Supreme Court of Florida decided that the constitution^ 
power conferred upon the legislature could be exercised only in its entirety and 
that the exception regarding existing contracts was void. Held^ that this 
interpretation of the state constitution was a possible one and that the United 
States Supreme Court would not interfere. The Tampa Water Works Co. 
V. The City of Tampa, U. S. Sup. Ct, Nov. 13, 1905. 

The only question before the Supreme Court was whether the interpretation 
which the Florida court put upon the constitutional clause in deciding that 
it meant that the legislature must exercise its full power, if any, was so un- 
reasonable that it should be reversed. Ordinarilv, when a legislative bod]^ is 
expressly invested with full power, the part which it refrains from exercising 
is inoperative. Aflntire v. Wood, 7 Cranch (U. S.) 504. Hence, on a fair 
interpretation of the constitutional clause, the conclusion of the Florida court 
was wrong and, as a matter of strict logic, should have been overruled. But, 
in view of the very numerous instances in which the Supreme Court has 
refused to reverse questionable decisions of state courts on the ground that 
such decisions represent a possible view of the contention, the Supreme Court 
reluctantly declined to overrule the state decision. This case, therefore, 
illustrates the length to which the Supreme Court will go in sustaining a 
decision of a state court. 

Constitutional Law — Separation of Powers — Delegation of 
Legislative Power. — A statute provided that fish commissioners might pro- 
hibit any discharge of sawdust into a stream if they determined that it occa- 
sioned injury to eaible fish. Held, that this is a delegation of legislative power, 
but is not unconstitutional. Commonwealth v. Stsson, 33 Banker & Tradesman 
2216 (Mass., Sup. Ct., Oct. 17, 1905). See Notes, p. 203. 

Contracts — Construction — Implied Promise to Furnish Reason- 
able Amount of Work. — Without notice to its employees, the defendant 
company shut down. The plaintiff, one of the employees thereby thrown out 
of work, brought suit against the company, claiming damages under his con- 
tract for piece work. Held, that the plaintiff can recover, since the contract of 
employment contained an implied promise to furnish a reasonable amount of 
work. Devonaldv, Rosser, 93 L. T. R. 274 (Eng., K. B., June 6, 1905). 

For a consideration of the principles involved, see 19 Harv. L. Rev. 133. 

Contracts of Affreightment — Freight — Justifiable Abandon- 
ment OF Ship. — The owners of a vessel contracted to carry a cargo of lumber 
from Pensacola to Montevideo, freight payable on delivery at the port of 
destination. The ship encountered heavy gales and was justifiably abandoned. 
The derelict was brought by salvors to Boston, where both ship-owner and 
cargo-owner applied for possession of the cargo, which, however, was later sold 
under an order of court upon allegation that it was diminishing in value. 
The ship-owner filed a libel for freight on the ground that he was ready and 
willing to go on with the contract, but had been prevented. Held, that he can 
not recover. The Eliza Lines, U. S. Sup. Ct., Oct. 30, 1905. See Notes, 
p. 200. 

Corporations — Corporate Powers and their Exercise — Power 
OF Water Company to Mortgage Franchise in Nature of Easement. — 
A water company, having a franchise to maintain pipes in the streets of a city 
to supply the city with water, mortgaged all its property and franchises. Held^ 
that the franchise constitutes an easement which may be mortgaged and which 
cannot be taken away from the mortgagee by a decree against the company 
annulling the franchise, entered in a suit begun after the mortgage was given 
and in which the mortgagee was not joined. Farmers* Loan &* Trust Co. 
V. Meridian Waterworks Co., 139 Fed. Rep. 661 (Circ. Ct., S. D., Miss.). 

Power to mortgage its property is, generally, an implied power of a corpora- 
tion. Aurora Agricultural Society v. Paddock, 80 111. 263. Such power is, 
however, by the weight of authority, denied to corporations undertaking a 



RECENT CASES. 21$ 

public duty, on the ground that the corporation might thereby disable itself 
from performing that duty. Commonwealth v. Smith, lo Allen (Mass.) ^48. 
By the weight of authority, also, the franchises of a corporation (other than 
the franchise to be a corporation, which is clearly inalienable) may not be 
mortgaged without legislative consent. Carpenter v. Black Hawk Gold Mining 
Co.f 05 N. Y. 43; Memphis R, R. Co. v. Commissioners, 112 U. S. 609. The 
case discussed illustrates two tendencies : first, to restrict the old rule for- 
bidding public corporations to mortgage, such restrictions being either by 
statute or by the action of courts in confining the rule to corporations given 
the power of eminent domain or exclusive rights ; and secondly, the tendency 
to hold franchises of this nature transferable. See Hunt dr* Bro. v. Memphis 
Gaslight Co.., 05 Tenn. 136; JVew Orleans, etc., R. R. Co. v. Delamore^ 114 
U. S. 501. The doctrine restricting the alienation of corporate property and 
franchises had its birth in the days when corporations were commonly created 
by special act and when they might truly be said to have a personal duty to the 
state in respect to the privileges granted to them specially. As to-day the 
creation of corporations by special legislation is exceptional, the reason for 
the old rule has passed away, and the rule itself may well be abandoned. 

Death by Wrongful Act — Statutory Liability — Rights of Non- 
resident Aliens. — A statute authorized an administrator to maintain an 
action " for the benefit of the decedent's husband or wife, and next of kin," to 
recover for pecuniary injuries resulting to such persons from a wrongful act 
causing the decedent s death, against a defendant who *' would have been liable 
to an action in favor of the decedent ... if death had not ensued." The 
plaintifE sued the defendant, whose negligence caused the death of the plaintiff's 
mtestate, in behalf of the widow and next of kin, who were non-resident aliens. 
Held^ that the plaintiff can recover. Alfson v. The Bush Co., Lim., 182 N. Y. 

393. 

The legislation of most states, including New York, creating liability for 
death by wrongful act, copies, in its principal features, the English Act of Lord 
Campbell. The effect of that statute is to create a new right of action, which 
vests in the personal representative and is not part of the decedent's estate. 
Pym V. Great Northern Ry. Co., 4 B. & S. 396. The class of beneficiaries is, 
therefore, determined solely by the interpretation of the statute. In holding 
that a non-resident alien is included, the present case follows an earlier decision 
of a lower court. Tanas v. Municipal Gas Co., 88 N. Y. App. Div. 251. The 
English authorities upon this question are in conflict. See Adams v. British, 
etc.^ Steamship Co., [1898] 2 Q. B. D. 430; Davidsson v. Hill, [1901J 2 K. B. 
D. 606. Most American courts permit non-resident aliens to recover under 
similar statutes. Mulhall v. Fallon, 176 Mass. 266; contra, Deniv. Pennsyl- 
vania R. Co., 181 Pa. 525. The language of these statutes seems to define the 
class of beneficiaries independently of residence or nationality. The contrary 
decisions rest upon a doctrine that statutes of a state are presumed, in the ab- 
sence of express language, to apply only to persons within its territorial juris- 
diction. See McMillan v. Spider Lake, etc., Co., lis Wis. 332, 337. While this 
rule of construction may be applicable to statutes imposing burdens, because of 
the inability of a state to fasten obligations upon aliens outside its territorial 
jurisdiction, no such reason exists for a similar interpretation of statutes con- 
ferring benefits. 

Divorce — Alimony — Payment after Death of Husband. — The 
plaintiff was granted a divorce from her husband with alimony during her life, 
secured by a mortgage executed by her husband and the defendant. The 
plaintiff sued to recover alimony accruing since her husband's death. Held, 
that she cannot recover. Wilson v. Hinman, 182 N. Y. 408. 

For an adverse criticism of the holding of the Appellate Division which is 
here reversed, see 18 Harv. L. Rev. 541. 

Domicile — Marriage of Infant. — An infant whose parents were 
domiciled in Victoria was married in a foreign jurisdiction, where there was 
evidence tending to show his intent to settle. Upon divorce proceedings 



2l6 HARVARD LAW REVIEW. 

instituted in Victoria it became important to determine his domicile. Held^ 
that although the respondent has been married, still, as he is an infant, he is 
incapable of changing his domicile. Robertson v. Robertson^ [1905] Vict 
L. R. 546. 

The court seems to lav down as an absolute rule that no infant can 
acquire a new domicile, it is hard to see why on principle this should be 
true in the case of an emancipated infant, who is entirely separated from his 
parents. It is clear that the settlement of an emancipated minor does not follow 
that of his father. St, Michaersy Norwich v. St. Matthew" s^ Ipswich^ 2 Stra. 
831 ; Lowell v. Newport^ 66 Me. 78. On the contrary, such a minor may 
acquire a new settlement of his own. Lubec v. Eastporty 3 Me. 220. The 
statutes governine; the acquisition of a settlement require a residence, which is 
usually construecT as ** domicile." Abington v. North Bridgewater, ^ Mass. 
170. Therefore this would furnish authority for allowing an emancipated 
minor to acquire a new domicile of his own. It can hardly be said, however, 
that marriage alone works the emancipation of a minor. But in the ordinary 
case, where a minor after marrying establishes a home of his own, supporting 
himself, he does become emancipated. Sherburne v. Hartland^ 37 Vt. 528 ; 
see also Rex v. Wittoncum Twambrookes, 3 T. R. 355. Though the point 
is disputed, it seems that the same would be true in the case of a minor 
married without his parents' consent. Commonwealth v. Graham^ 157 Mass. 
73. Thus the minor might by his marriage be enabled to acquire a new 
domicile. Cf, Succession of Robert^ 2 Rob. (La.) 427. 

Equity — Injunction — Riparian Rights. — A corporation proposed to 
divert water from the Passaic River, at a point above the navigable portion, 
into New York to sell. The state of New Jersey, through the Attorney Gen- 
eral, sought an injunction. Held^ that the state, by virtue of owning the bed of 
the navi^ble portion of the Passaic River, is entitled, as a riparian proprietor, 
to an injunction to restrain the defendant from taking the water outside the 
state. AfcCarter^ Atty, Gen, v. Hudson Water ^ etc.j Co,y 61 Atl. Rep. 710 
(N. J.. Ch.). 

The doctrine is a novel one, that the state has the rights of a '* riparian pro- 
prietor " through ownership of the bed of the navigable portion of a stream. 
The words, '* riparian rights,*' suggest that ownership of the bank is a neces- 
sary element. And this view is supported by the English rule that these rights 
do not depend on ownership of the soil unaer the stream. Lyon v. Fishmon- 
rrs Co., I App. Cas. 662. Riparian rights and restrictions, moreover, seem to 
lave arisen from the benefit conferred by the stream upon the riparian tract. 
So a riparian owner may make a reasonable use of the water, such rieht of user 
being an incident to the soil, and passing therewith. Union M. ana M. Co. v. 
Ferrisy 2 Saw. (U. S. C. C.) 176. He is entitled to the natural flow, save for 
reasonable use by proprietors above. TyUr v. Wilkinson^ 4 Mas. (U. S. 
C. C.) 397. But he may not assign his rights in gross. Stockport Water 
Co, V. Potter^ 3 H. & C. 300. Nor may he use the water beyond the riparian 
tract. Moulton v. Newburyport Water Co.y 137 Mass. 163. In the case at 
hand apparently none of the usual riparian benefits are conferred upon the 
stream-bed; and so the reason for extending riparian rights to the owner 
thereof fails. The decision, however, may be supported on the ground of the 
state's right to object to improper interference with a navigable stream, even 
though such interference took place beyond the limits of the state, or above the 
navigable portion. Cf. Pennsylvania v. Wheeling, etc, Bridge Co., 13 How. 
(U. S.) 518 ; United States v. Rio Grande Irrigation Co., 174 U. S. 690; Mis- 
souri V. Illinois and Chicago District, 180 U. S. 208. 

False Imprisonment — Civil Liability — Liability of Judicial Offi- 
cer. — The defendant, a justice of the peace, issued a warrant returnable before 
himself, instead of before a justice in the town where the offense was com- 
mitted, as required by statute. In spite of objection, he tried and convicted 
the plaintiff. This conviction was afterwards reversed. Held, that the warrant 
did not confer jurisdiction over the plaintiff, and that the defendant is liable iq 



h: 



RECENT CASES. 217 

a civil action for false imprisonment. McCarg v. Burr^ 106 N. Y. App. 
Div. 275. 

The defendant committed two errors: first, in causing an arrest under a 
defective warrant, and secondly, in convicting without jurisdiction. The issuing 
of a warrant, void on its face, is a wrongful exercise of a ministerial, as distin- 
guished from a judicial, function, for which a justice is civilly liable. Blythe v. 
Tompkins^ 2 Abb. Pr. (N. Y.) 468. The sentence purported to be a judicial act, 
which is absolutely privileged. Cooley, Torts, 2d ed., 477. But the fact that a 
judge assumes jurisdiction does not of itself make his acts thereunder judicial. 
The Case of the Marshahea^ 10 Co. 369. The warrant being defective in sub- 
stance, not merely in form, gave no jurisdiction in fact over the plaintifE. Wills 
V. Whittier^ 45 Me. 544. The tendency, however, is to accord a presumption of 
jurisdiction, even to inferior courts. Thompson v. Jackson^ 93 la. 376. In the 

Principal case the assumption of jurisdiction did not arise from a mistaken fact, 
ut from an error of law, on which two opinions could not honestly be enter- 
tained by reasonable men, and so the presumption of jurisdiction should not 
protect tne defendant. Cf, Grove v. Van Duyn^ 44 N. J. L. 654; see also 12 
Harv. L. Rev. 352 ; 13 ibid. 407. The criterion suggested for rebutting the 
presumption, analogous to that applied on motions to set aside verdicts, protects 
a judge from the consequences of every error of judgment, unless totally unrea- 
sonable, but leaves him answerable tor the commission of a wrong that is 
practically wilful. 

Husband and Wife — Rights and Liabilities of Husband as to 
Third Parties — Liability of Husband for Maintenance of Insane 
Wife in Public Asylum. — The trustees of a county insane asylum peti- 
tioned for an order to compel the defendant to pay a certain sum weekly for 
the support of his insane wife in the asylum, to which she had been committed 
by the proper public authorities. Held^ that the defendant is not liable. Rich- 
ardson V. Stuesser, 103 N. W. Rep. 261 (Wis.). 

The common law liability of a husband for necessary expenses incurred by 
his wife after she has left his bed and board rests upon an implied contract, 
which is raised only where her departure is ascribable to his wrongful act or 
default. Schouler, Husband and Wife, § hi. In the present case the 
husband is clearly guilty of no wrong, whether he sets in motion the machinery 
of the law, or merely yields, perhaps reluctantly, to the action of the public 
authorities in confining his wife. Thus there seems to be no ground for raising 
the implied contract, which alone, in the absence of a statute, should make the 
husband liable. C/. County of Delaware v. McDonald^ 46 Iowa, 170; contra^ 
Goodaie v. Lawrence^ 88 N. Y. 513. There is a decided conflict of authority on 
the question involved; but the reasoning of the principal case seems sound, as 
public policy, which seeks at once the protection of the insane and of the com- 
munity, demands that no selfish fear of liability on the husband's part shall 
block the effect of the wholesome legislation which requires the commitment of 
the insane to a public institution. See Baldwin v. Douglas County^ 37 Neb. 283. 

Insurance — Commencement, Duration, and Termination of Liabil- 
ity — Inevitable Loss within Period of Risk. — A warehouse and goods 
therein were insured until April i, 1902, noon. Held, that even though the 
destruction of the warehouse by fire appeared inevitable during the time limit 
of the policy, the company is not liable for loss to the goods if nre did not actu- 
ally start in the warehouse until after April i, 1902, noon. Rochester German 
Ins. Co. V. Peaslee Gaulbert Co., 87 S. W. Rep. 1 1 15 (Ky., Ct. App.). 

A careful search of the authorities stamps this case as one of first impression. 
The court clearly points out that the liability of the insurer is for actual loss, 
and not for damage the imminence or certainty of which existed during the 
term fixed in the policy. The conclusion reached harmonizes with other 
branches of insurance law. See 17 Green Bag 674. So, where one insured 
against death in fact survives the term of the contract, no recovery can be had, 
even though he was attacked with a fatal disease before the expiration of the 
policy. See Howell v. Knickerbocker Life Ins. Co., 44 N. Y. 276 ; Lockyer v. 



2l8 HARVARD LAW REVIEW. 

Offler, I T. R. 252, 260. Similarly, to allow any recovery in marine insurance 
the vessel must have suffered loss during the term of the policy, and the extent 
of such recovery is restricted to the magnitude of the loss incurred during this 
term, though there be a subsequent total destruction. Howell v. Protection 
Ins, Co., 7 Oh. (pt i) 284. Accordingly, if the ** death wound ** so received 
rendered subsequent total loss inevitable, indemnity for total loss should be al- 
lowed, for the property was thereupon rendered valueless. See Coit v. Smith, 
3 Johns. Cas. (N. Y.) 16; Duncan v. Great Western Co., c Abb. Pr. (N. Y.) 
N. s. 173. The court remarks obiter that a similar rule of damages would have 
been applied if the fire making total destruction inevitable had, in fact, attacked 
the warehouse during the life of the policy. But if the goods were insured as a 
separate risk, they are as much a separate subject of insurance as two adjoining 
buildings under separate policies. And the very basis of this decision is that 
fire must have attacked the insured property itself, and that vast depreciation 
caused by imminent danger from fire, which has merely seized contiguous prop- 
erty, gave no right to damages. 

Judgments — Right of Assignee to Sue for Breach of Officer's 
Duty. — Held, that the assignment of a judgment does not pass to the assignee 
the judgment creditor's right of action against an officer for misconduct wnich 
occurred prior to the assignment. Commonwealth ex reL Vicars v. Wampier^ 
SI S. E. Rep. 737 (Va.). 

On the question here involved, the authorities are squarely in conflict. Cf, 
Redmond \^ Staton, 1 16 N. C. 140 ; Citizens', etc.. Bank v. Loomis, 100 la. 266. 
It is generally admitted that the assignment of a judgment necessarily carries 
with it ** all the beneficial interest of the assignor in the judgment, and all its 
incidents." See Freeman, Judgments, 4th ed, §431. But "incidents," in 
its accepted meaning would not include a mere collateral right of action against 
a public officer, since such right of action is in no legal sense a security for the 
debt. See Commonwealth for Paris v. Fuqua, 3 Litt. (Ky.) 41. Obviously 
justice requires that if the assignee of the judgment has suffered by its depre- 
ciation caused by an officer's breach of duty, he should be allowed to recover 
damages from the offending officer. Yet the legal claim against the officer, un- 
doubtedly resting in the assignor prior to the assignment, can hardly have been 
transferred. The logical solution of the difficulty would seem to be that the 
assignor becomes constructive trustee of the claim for the benefit of the a-ssignee. 
This being the situation, the assignee or beneficiary would in many jurisdictions 
be allowed to sue directly at law under the common statute providing that 
actions "shall be prosecuted in the name of the real party in interest." 

Landlord and Tenant — Rent — Distraint of Crown Property. — 
A government horse used in the South African War was lent to a yeoman, 
and later was seized and sold under distress for the yeoman's rent. The gov- 
ernment appealed from an adverse decision in an action for illegal distress. 
Held, that the appeal should be granted, since crown property on a subject's 
land cannot be distrained for rent. Secretary of State for War v. Winne, 22 
T. L. R. 8 (Eng., K. B., Oct. 26, 1905). 

Although no modern decisions on this point have been found, the doctrine of 
the case is supported by the ancient writers, and seems sound on principle. 
Where the crown was a tenant, the landlord was unable to distrain for rent. 
9 Vin. Abr., 2d ed., 125; Brook Abr., pi. 46. Crown cattle damage feasant 
could not be distrained. Rex v. Prior de Okeburne, P. 22 E. I. If courts would 
not allow distress in that case, where the crown was at fault, they surely would 
not have allowed it in the case under discussion, where the crown was blameless. 
Sound principles demand the same result. The government must be absolutely 
unhampered in the use of its own property. For that reason, a state is not 
allowed to tax property belonging to the fecleral government. Similarly, nei- 
ther federal nor state nor county property, retaining its public nature, can be 
levied on or sold under an execution. Mayrhofer v. Board of Education, 89 
Cal. 1 10. For the same reason distress should not be allowed. 



RECENT CASES. 219 

Libel AND Slander — Privileged Communications — Statements op 
Intended Witness to Attorney and Client. — The defendant made 
defamatory statements to an attorney and his client in the course of their pre- 
liminary interview with him as a prospective witness. Held, that the defendant 
is protected by the same privilege which would shield him as a witness on the 
stand. fVa/soH v. ATEwan, [1905I A. C. 480. 

It is now well settled that the defamatory words of a witness on the stand 
made with reference to the matter at issue are absolutely privileged. Dawkins 
V. Lord Rokeby^ L. R. 7 H. L. 744. In the United States, however, the 
qualification is generally added that the statements must be pertinent to the 
enquiry. McDavitt v. Beyer, 169 111. 475. A few judicial expressions to 
the efiEect that this privilege is conftned to the case of a witness while testifying 
on the stand were clearly made with no thought of the present situation. See 
Seaman v. Netherclift, 2 C. P. D. 53, 56. The answer to the question now 
raised, whether the absolute privilege of witnesses on the stand snould be ex- 
tended to preliminary examinations by attorneys, must depend on considerations 
of public policv. The judgment and reasoning of the court seem well grounded. 
Witnesses will not suomit to a preliminary examination, through which the 
proe;ress of trials is so much facilitated, if they are liable for statements then 
made. The public benefit obtained by the protection of the intended witness 
seems greatly to outweigh the little harm lixely to result from a defamatory 
communication made only to an attorney and his client. For any republication, 
they may, of course, be liable. Odgers on Libel and Slander, 4^1 ed., 
165. 

Life Estates — Residuary Bequest of Chattels Personal for 
Life. — A testator bequeathed the residue of his chattels personal to his wife 
for life. Held, that the wife takes a life interest only. Walker v. Hill, 60 Atl. 
Rep. 1017 (N. H.). 

The English and American authorities agree that a gift by will of personal 
chattels for life, with a limitation over, conveys to the nrst legatee an interest 
for his life only. Vachel v. Vachel, i Ch. Cas. 129; Smith v. Bell, 6 Pet. 
(U. S.) 68. The case in which a chattel personal is bequeathed for life, without 
a limitation over, has not arisen in England ; but numerous American decisions 
hold that under this form of bequest also the interest continues during the 
legatee's life only- Black v. Ray, i Dev. & B. (N. C.) 334; Anonymous^ 
2 Hayw. (N. C.) 161. These principles apply eaually where the bequest is of a 
residue as distinguished from a specific chattel. Smith v. Bell, supra. The 
technical nature of this life interest is a question on which the decisions are 
silent. The interest cannot be a legal estate, because the common law recog- 
nized no tenure and hence no estates in chattels personal. See 2 Pollock & 
Maitland, Hist, of Eng. Law, 2d ed., 182; Welsch v. Belleville Savings 
Bank, 94 111. 191, 204. The American decisions holding that a reversion exists 
when no limitation follows the bequest, negative the possibility of regarding 
the first interest as absolute and the limitation over as an executory bequest 
Perhaps the most accurate form of statement is that the legatee has such an 
interest as entitles him to the use and possession of the chattel during his life. 
See 14 Harv. L. Rev. 407-418. 

Partnership — Partnership Property — Conveyance to Firm in 
Firm Name. — A firm continued to transact business under the name of 
** William Wray," a deceased partner. Land was purchased with firm money 
for partnership purposes, the deed of conveyance running to " William Wray " 
as grantee. Held, that the le^al title to the land vests in the several members 
of the firm as joint tenants. Wray v. Wray, [1905! 2 Ch. 349. 

No other English case has been found deciding the effect of a deed of land 
to a partnership in the firm name. In reaching the decision the court implicitly 
relied upon a former case, in which the same point was raised in connection witn 
a chattel mortgage. Maugham v. Skarpe, 17 C. B. (n. s.) 442. The Ameri- 
can decisions in point as to realty show a well defined conflict of authority. 
See 10 Harv. L. Rev. 188. The predominant American rule vests title only m 



220 HARVARD LAW REVIEW. 

those partners whose names appear in the firm name. Holmes v. Jarrett Moon 
&* Co., 7 Heisk. (Tenn.) 500; Gi//e v. Hunf, 35 Minn. 357. A number of 
decisions, however, tend to harmonize with the rule of the English case, which 
clearly commends itself to reason. Hoffman v. Porter^ 2 Brock. (U. S. C. C.) 
156; By am v. Bickford^ 140 Mass. 31. A deed of conveyance to be valid 
needs only to describe the grantee with reasonable certainty. Morse 6f* Hough- 
ton v. Carpenter y 19 Vt. 613. Where a firm name collectively represents the 
individual members in usual business transactions, the name of that firm as 
party to a deed of conveyance would seem to describe the individual partners 
as grantees with sufficient certainty. 

Physicians and Surgeons — Necessity of Patient's Consent to 
Operation. — The plaintiff consented to allow the defendant to operate on 
her rieht ear. After anesthetics had been administered, the defendant discov- 
ered that the plaintiffs left ear was in a more serious condition than was her 
right. Consequently he operated upon the left ear. The plaintiff sued him for 
damages for an assault and battery. Held^ that she may recover, since she had 
not consented to the operation on the left ear. Mohr v. Williams^ 104 N. W. 
Rep. 12 (Minn.). 

For a discussion of the principles involved, see 18 Harv. L. Rev. 624. 

Right of Support — Removal of Support — Granite Quarries. — 
A grantor made a conveyance of land in fee to the defendant, reserving title 
to the granite of which some was exposed ; and afterwards conveyed his remain- 
ing interest in the lot to the plaintiff. Held^ that though the plaintiff has title 
to all the underlying granite, he must leave a reasonable support for the surface 
and may quarry omy the granite actually exposed to view from time to time. 
Phillips V. ColUnsville Granite Co., 51 S. E. Rep. 666 (Ga.). 

Granite is included in the legal meaning of the word '* minerals.*' Armstrong 
V. Granite Co.^ 147 N. Y. 495. Unless the conveyance shows a contrary inten- 
tion either in express terms or by strong implication, the owner of minerals 
underlying the surface must mine them so as to leave reasonable support for 
the surface. Lindley, Mines, §§ 818, 819. But a conveyance of minerals 
carries with it by implication the right of way over and through the surface 
necessary to mine them. Turner v. Reynolds, 23 Pa. St. 199. As eranite can 
be obtained only by means of an open quarry, and therefore without leaving any 
surface support, there is here a conflict of principles. However, in the present 
case some e;ranite was exposed when the reservation was made, and conse- 
quently coiud be quarried. As a reservation will be construed most strongly 
against the grantor, it would not be unreasonable to subordinate the right of 
quarrying to the right of surface support. Harris v. Ryding, 5 M. & W. 60. 
Moreover, a rieht of way of necessity is implied only when there is no other 
way. Leake, Law of Uses and Profits of Land 268. This right is to be 
exercised with due regard to the surface owner. Chartiers Coal Co. v. Mellon, 
152 Pa. St. 286. The decision seems correct; but it is an interesting matter 
for speculation as to whether it should be followed where none of the stone is 
exposed. 

Sales — Rights and Remedies of Buyers — Effect of Acceptance 
ON Right to Sue for Defective Performance. — The Kentucky Court 
of Appeals has recently stood evenly divided on the question, whether, in an 
action by a seller for the price of machinery, acceptance by the buyer waives 
his rieht to damages for failure to deliver at the time required by the contract 
LuciU Min. Co. v. Fairbanks, Morse &* Co., 87 S. W. Rep. 1121. See Notes, 
p. 208. 

Taxation — Particular Forms of Taxation — Inheritance Tax: 
Equitable Conversion of Foreign Real Estate. — A testator gave his 
executor power to sell his real estate situated in another state. At the time of 
his death his personal estate was insufficient to pay his debts and pecuniary 
legacies. Held, that the foreign real estate is equitably converted, and thereby 



RECENT CASES. 221 

becomes liable as personalty to a collateral inheritance tax of the state where 
the testator was domiciled. In re Vanuxem^s Estate^ 6i Atl. Rep. 876 (Pa.). 
See Notes, p. 201. 

Taxation — Where Property may be Taxed— Personalty at Dom- 
icile OF Owner. — Under a statute authorizing the taxation of *'all per- 
sonal estate of corporations organized under the laws of Kentucky whether the 
property be in or out of this State," a domestic corporation was taxed on cars 
which were used exclusively outside the state. Held^ that the tax is unconsti- 
tutional, since it is depriving a person of property without due process of law. 
Uniony etc.y Company v. Kentucky^ U. S. Sup. Ct., Nov. 13, 1905. See 
Notes, p. 206. 

Tax Sales — Redemption — Rights of Original Owner against Sub- 
Vendee. — A deed was given and recorded for land bought at a tax sale. 
Within the required period, the original owner redeemed, and received the tax 
deed from the purchaser, but did not get a quit-claim deed. After the period 
for redemption, the purchaser at the tax sale sold the property to the plaintiff 
who now claims title as a bona fide purchaser, since he had no actual notice of 
redemption. Held^ that the plaintiff has no title, because sufficient notice 
of redemption is presumed from the fact that the purchaser at a tax sale has, 
by the law of the state, only an imperfect title until the period for redemption 
has expired. Bennet v. Southern Pine Co,^ 51 S. E. Rep. 654 (Ga.). 

The decision can be rested on more fundamental grounds than constructive 
notice. The first purchaser's title was defeasible on redemption, and redemp- 
tion had been made. At that moment ipso facto the title re-vested in the orig- 
inal owner. Burns v. Ledbetter, 54 Tex. 374. Redemption itself, and not 
record of redemption, defeats the purchaser's title. Cooper w, Shepardson^ 51 
Cal. 298; Fenton v. Way^ 40 Iowa 196. Even in states that require record of 
redemption, if an owner can prove redemption in fact, a tax deed issued later 
will give no title, though the purchaser did not know of the redemption on 
account of a clerk's failure to record it Burke v. Cutler^ 78 Iowa 299. In 
Georgia there is no provision requiring redemptions to be recorded. See Civ. 
Code, 1895, § 3618. Nor does the statute directing the purchaser to execute a 
(}uit-claim deed on redemption alter the case. Such statutes are to be construed 
liberally in favor of the parties entitled to redeem. Burton v. Hintrager^ 18 
Iowa 348. The Georgia statute provides that the quit-claim deed from the 
purchaser at the tax sale shall \>^ prima facie evidence of redemption, not that 
redemption cannot be proved in other wavs. If redemption is in fact proved, 
as here, then the purchaser, or anyone claiming under him, has lost his title 
absolutely, and that of the original owner must prevail. 

Trusts — Creation and Validity — Tentative Trusts in Savings 
Bank Deposits. — A spendthrift deposited his money in savings banks in 
the names of his sisters as trustees for his children, and aelivered to the trustees 
the bank-books, intending thereby to save his money from beine squandered, 
and to have it kept for the support of himself and his family during his life, 
and go to his children at his death. Held^ that such deposits create *' ten- 
tative " and not irrevocable trusts during the depositor's lifetime. Lattan v. 
Van Ness, 95 N. Y. Supp. 97. See Notes, p. 207. 

Trusts — Powers and Obligations op Trustees — Liability of 
Trustee for Acts of Co-Trustee. — A trustee, with the consent of the 
cestui and the other trustee, sold a part of the res. Instead of reinvesting the 
proceeds, as was intended, he kept them; showing his co-trustee a forged 
receipt of the new stock which he purported to have bought. The cestui 
now brings action against the innocent trustee. Held, that this trustee was not 
negligent in dealing with his co-trustee and that he is, therefore, not liable for 
the defaults of that co-trustee. Shepherd w. Harris, L. R. [1905I 2 Ch. 310. 

If, as in this case, there is no question of connivance or negligence, and if 
there is no special assumption of liability, then by a well settled rule of law, a 
trustee is not liable for the defaults of a co-trustee. Townley v. Sherborne, 



222 HARVARD LAW REVIEW. 

3 White & Tudor Lead. Cas. £q. 430. Nor is the trustee's liability increased 
by his dealing with his co-trustee as an agent. A trustee has power to appoint 
an agent to do certain ministerial acts, as, for example, to purchase specified 
stock ; and one of the trustees may be appointed such an agent. Purdy v. 
Lynch, 145 N. Y. 462; see Perrv, Trusts § 404. In appointing and dealing 
with agents, a trustee need exercise only the same amount of care as a reason, 
able man of business would exercise in regard to similar affairs of his own. 
Speight V. Gaunt, 9 App. Cas. i. The trustee here did exercise such reason- 
able care in dealing witn his co-trustee as agent, and so is clearly not liable. 

Witnesses — Privileged Communications — Report of Railway 
Accident. — The defendant company required from its servants a report of 
the particulars of every accident, partly with a view to possible litigation. 
Held, that documents containing such reports are not privileged. Savage v. 
Canadian Pacific Ry, Co., 41 Can. L. J. 670 (Manitoba, K. B., June 15, 1905). 

The doctrine of privileged communication between attorney and client is one 
of expediency, since the former must have as full information as possible in 
order to protect the interests of the latter. But this doctrine appears to have 
been extended verv far in some cases of communications from or to third per- 
sons, which, clearly, should not be privileged unless such privilege is necessary 
for the protection of the relation between attorney and client. Glyn v. CauU 
feild, 3 Mac. & G. 463. The mere fact that a party has, in view of litigation, 
obtained a report from a distant agent should not operate to give such party a 
privilege which one who has made a personal investigation under similar cir- 
cumstances would not have. Anderson v. Bank of British Columbia, 2 Ch. D. 
644. Such a report should on principle be privileged only when requested by 
the party's attorney, or for direct submission to him, with litigation definitely in 
view. English v. Tottie, i Q. B. D. 141. The privilege rightly discounte- 
nanced in the principal case would exempt practically all reports and accounts, 
being kept partly with a view to future possible litigation. It seems that as a 
rule no document made in the ordinary routine of business should be privileged. 
Woolly v. North London Railway Co., L. R. 4 C. P. 602. 



BOOKS AND PERIODICALS. 

I. LEADING LEGAL ARTICLES. 

The Personality op the Corporation. — To decide cases on the 
authority of decisions that have gone before and the good, sound sense of the 
situation, without an over-nice inquiry into the fundamental theories of partic- 
ular legal concepts is, perhaps, characteristic of Anglo-Saxon practical minded- 
ness. Decisions are piled on decisions, phrases embodying slothful reasoning 
become threadbare by repetition, before the field is canvassed for a ration^ 
basis of the authorities or for a recognition of diverse conceptions expressed in 
conflicting authorities. That a definitely conceived theory may involve conclu- 
sions radically different from those obtained by a blind groping for results is 
probably nowhere more vitally true than in the law of corporations. The md- 
tiplication of questions presented and the extent to which corporations enter 
into the present social organization compel, for an intelligent dealing with the 
problems involved, too long neglected inquiries into the corporate idea. 

Several theories of corporateness have oeen propounded, which will be found 
set forth in the highlv suggestive Yorke Prize Essay of Mr. C. T. Carr, just 
issued by the Cambridge University Press. The investigation into the nature 
of the corporation is a&o pursued with great clearness and much vigor in the 



BOOKS AND PERIODICALS. 223 

last number of the Law Quarterly Review. The Personality of the Corpora- 
tion and the State, by W. Jethro Brown, 21 L. Quar. Rev. 36? (Oct., 1905). 
After dwelling on the unsatisfactory state of lejg^al learning on the subject, Mr. 
Brown recalls familiar principles of corporation law. A corporation is not 
identidil with the individuals who compose it, nor is it the equivalent of the 
sum of its members. It is, therefore, a distinct subject of legal rights and 
duties ; it is in law a person. " Wherever the law attributes rights or duties to 
an entity or institution, it makes a person of, or recognizes a person in, that 
entity or institution." Is the personification of the corporate entity an artificial, 
convenient fiction or is it suggested by, and does it result from, real analogies 
to natural personality? The fiction theory encounters this dilemma: either 
there are legal rights without a holder, or the riehts are those of the incorpo- 
rators. The first position is untenable. The alternative view finds its refuta- 
tion in a consideration of human associations in seneral and corporations in 
particular. That a group is inherently different from the sum of the individ- 
uals composing it is a psychical fact. Historical considerations no less than a 
comparison with other so-called fictitious legal personifications, as e, g, the hce- 
reditas jacens (see Holmes, Common Law 342 et seq,)y refute the contention 
that the corporation is a mere metaphor, a fiction. Bodies possessing all the 
essential attributes of corporateness existed before the alleged creation of 
corporations by charter or statute.^ Corporations instead of being the creatures 
of the law compelled recognition from the law. In truth '' the fiction theory is 
but a stage in the evolution of legal ideas.*' The phenomenon of corporate 
personality does not fit into known legal categories, but since it satisfies the 
test of personality in having capacity for legal rights and duties, it is most 
natural to treat it as though it were a person, with a slowly growing recognition 
that the analogy is more real than fictitious. But in attributing realitv to this 
person, a real person must not be confused with an actual person. *< When we 
say that this corporate person is not a legal fiction, we imply no more than that 
it is a representation of psychical realities which the law recognizes rather than 
creates." Among the numerous differences between corporations and physical 
persons special attention may be called to those relating to their origin and the 
faculties of willing and acting. Corporations are more the result of '' conscious 
foresight" than physical persons; there is more of creation than of growth. 
The corporation wills by a majority, and acts, unlike an individual, through the 
mediation of another person oest characterized, perhaps, as an organ. It is, 
then, neither an actual nor a fictitious person ; it is a '* psychical reality — a 
reality arising firom unity of spirit, purpose, interests and organization." And 
after discarding various adjectives, "artificial," "juristic," "moral," "ideal," 
tihe author fastens on the name collective person. The relation of the corpo- 
ration to other persons, legal and non-legal, is then treated and schematized. 

That the author's purpose did not permit him an inquiry into various forms 
of unincorporated associations, especially trade-unions, in the light of the Taff 
Vale decision, is regrettable. The final discussion as to the theory of the state 
is, perhaps, of less immediate interest to the American reader. Mr. Brown 
thinks it is only a matter of time before the state as a collective real person will 
be recognized, with important differences as to control, growth, and development 
between the state and other collective persons. 

While the object of this notice has been to call emphatic attention to this 
article, leaving to others a searching analysis, yet one or two comments suggest 
themselves. An adoption of this realistic theory seems to be tacitly made in 
the American doctrine of de facto corporations. Its frank avowal would give 
an intelligent basis for decisions that are too often supported h^ that most 
overworked of all legal arguments, estoppel. Further, its recognition would 
have an important bearing on the law of ultra vires. By asserting a personalitv 
apart from legal creation, a general capacity to contract must be conceded, 

1 To maintain that corporations are fictitious is, therefore, as Mr. Carr points out, 
adherence to the fiction theory purchased at the cost of another fiction. See Carr» 
Law of Corporations 174. 



224 HARVARD LAW REVIEW. 

leaving the courts to deal with the abuse of corporate power as they do with 
that of the individual's contractual rights, on grounds of public policy and not 
corporate incapacity. See The Unauthorized or Prohibited Exercise of Cor- 
porate Power ^ by George Wharton Pepper, 9 Harv. L. Rev. 255. Similar 
grounds of policy would explain the refusal of American courts to enforce 
corporate liability where an association actually formed has not substantially 
complied with the requirements of the law. 



The Jury System in the United States and its Extension to 
THE Philippines. — Probably no recent address on a legal subject has pro- 
voked such widespread discussion as that delivered last June at the Commence- 
ment exercises of the Yale Law School. The Administration of Criminal 
Law, by William H. Taft, 15 Yale L. J. i (Nov., 1905). Secretary Taft points 
out that while the civil law has been content to leave much to the consciences 
of rulers, the common law protects the individual by insisting not so much on 
general principles as on forms of procedure. The most important of these is 
the right of trial by jury. Yet, though our Constitution requires issues of fact 
in civil cases at law involving more than twenty dollars to be tried before a 
jury, much the same issues in cases in equity are tried without one. Since the 
abolition by many of our codes of proceaure of the distinction between law and 
equity in civil actions, a lawyer is needed to tell whether a suit brought is at 
law or in equity. Further, in more than half the civil suits a jury is dispensed 
with by consent of the parties. Certainly, under these conditions, the constitu- 
tional requirement of a jury trial cannot be said to rest on any fundamental 
principles ; nor would the abolition of the requirement, with proper appeal, 
deprive a litigant of an impartial hearing. Consequently, as Secretary Taft 
questions the value of the system even in the United States, he is opposed to 
introducing it into the Philippines in civil suits. To introduce it in criminal 
cases would, similarly, be unwise. Criminal procedure in this country presents 
a lamentable contrast to that in England, where by the judges' retention of 
control over the jury, the lack of appeal, and the better quality of men availa- 
ble for jury service, a reputation lor certainty of punishment is maintained. 
Here much legislation prevents the judge from being more than a moderator at 
a religious meeting. He is prohibited from commenting on the facts, which is 
essential if instructions are to be of value, and no opportunity is given him to 
dispel the sentimental atmosphere too often created by the attorney for the 
accused. The number of peremptory challenges allowed the defendant oper- 
ates against securing as jurors men of force or of character. The ease of 
appeal on the slightest technicality, which stands between the defendant and 
his just conviction, is another cause of the laxness of administration of our 
criminal laws. When these are the conditions surrounding trial by jury in the 
United States, to extend it to the Philippines, where conditions are less favor- 
able, would be impolitic. The Filipinos are still an ignorant people, and the 
juror in deciding between the state and the accused would be moved by every 
motive other than that of the well-being of the state. Moreover, the civil law, 
in force in the islands, lacks a code of evidence, almost an essential of the jury 
system. 

While Secretary Taft's long experience and soundness of judgment entitle 
his opinion to great weight, his criticisms of the jury system have brought forth 
many protests, based on widely divergent grounds. One writer insists that the 
judge's functions are properly limited to those of moderator, and that therefore 
our restrictions have been wise. Observations on Secretary Taffs Text, by 
John J. Crandall, 28 N. J. L. J. 267. The prevailing opinion seems to be that 
while the shortcomings of our criminal procedure are undoubted, and to in- 
troduce the jury into the Philippines would be unwise, the Secretary of War 
has been too warm in his denunciation of the American jury trial. The limita- 
tions upon the power of the judge ; the technicalities taken advantage of on 
appeal ; the number of peremptory challenges and the many exemptions allowed^ 



BOOKS AND PERIODICALS. 225 

which result in excusing from jury dut]^ manv of those best qualified to act 
in the increasing complexities of litigation, when a higher standard of intel- 
ligence among the jurors is needed — all these, though defects, are regarded 
not as defects in the system, but in its administration, and, as such, reasons not 
for discarding the jury system, but for cleansing it of these growths upon it. 
One judge, or a number of judges, would not, it is suggested, be more satisfac- 
tory in deciding issues of fact than the jury of twelve ; and to the unique power 
fiven our judiciary to declare legislative acts unconstitutional, the jury power, 
om of the sovereignty of the people, should not be added. The Jury System^ 
by William H. Holt, 67 Alb. L. J. 298. Cf, The Administration of the Jury 
System, by Henry B. Brown, 1 7 Green Bag 623. 



Governmental Regulation op Prices. — A writer in the Green Bag 
touches upon a subject often discussed but always of interest and importance. 
Governmental Reputation of Prices^ by Eugene A. Gilmore, 17 Green Bag 627 
(Nov., 1905). The mediaeval method of bringing into effect iust prices, wages, 
and hours, says Mr. Gilmore, was by fixing them through the consultation of 
experts, whose estimates were enforced by positive law. In England the cost 
of the necessities of life was made subject to regulation as early as the four- 
teenth century, in the davs of the Black Death. Subsequently such matters as 
th,e binding of books ana the sale of beer barrels and of long bows came under 
supervision. In the New World the power of government to legislate upon 
prices and wages was recognized by comprehensive statutes passed in Massa- 
chusetts (1777) and in New York (1778). Neither in England nor in America, 
however, were laws of this character successfully enforced. 

Modem public opinion, viewing general interference with private business as 
a deprivation of liberty and property prohibited by the Constitution, relies 
upon the regulating force of free competition. Yet the efficacy of the police 
power remains unimpaired by the Fourteenth Amendment, and under it the 
case of Munn v. Illinois (94 U. S. 113) and decisions following enunciated the 
right of the state to regulate prices and rates in all businesses '< affected with a 
public interest.** Interpreting this as sanctioning interference whenever " essen- 
tial or desirable for the public good," Mr. Gilmore concludes, *Mf dominant 
public opinion should favor a return to the paternalistic conditions of mediseval 
England, or to some modified and less extensive control of private business, 
such as reasonable restrictions on the hours of labor, and prohibitions on the 
manipulation of prices, . . . the Constitution should not be construed to check 
the working out of such opinion.'' Mr. Gilmore's rule of loose constitutional 
construction is that toward which the dissenting minority in the Warehouse Cases 
believed the Supreme Court to be tending. See Munn v. Illinois, 94 U. S. 
n3» 136; Buddw. New York, 143 U. S. 517, 548; Brass v. North Dakota, 153 
U. S. 391, 405. It has, however, not yet met with the approval of constitutional 
lawyers, who seem to require a rather intimate connection between the business 
which it is sought to subject to legislative interference and some one of the very 
general objects sought by the police power, namely, public safety, health, morals, 
or welfare. See Cooley, Const. Lims. 870 et seq. The authorities probably 
warrant no more definite statement than that rates are subject to regulation in 
those businesses possessed of the elements of a legal or a virtual monopoly. 
See The Law of the Public Callings as a Solution of the Trust Problem, 
by Bruce Wyman, 17 Harv. L. Rev. 156, 217. Certainly the courts show little 
tendency to set aside, under the excuse of an unlimited police power, all con- 
stitutional safeguards against interference with private enterprise, and it is 
probable that anv new business will be made subject to regulation only so 
far as such regulation becomes essential by reason of peculiar circumstances 
attending it. See Freund, Pol. Power, § 378 ; Public Service Company 
Rates and the Fourteenth Amendment, by N. Matthews, Jr., and W. G. 
Thompson, 15 Harv. L. Rev. 249; Opinions of the Justices to the House oj 
Representatives, 55 Mass. 598 ; 182 ibid, 605. 

15 



226 HARVARD LAW REVIEW. 

Administration of Criminal Law, The. William H, Taft, is Yale L. J. i. See 
supra. 

Bank Stockholders as Notaries. Anon. A dijgest of cases and statutes illustrat- 
ing the conflicting positions of a score of jurisdictions on the competency of such 
notaries. 22 Bank. L. J. 759. 

Blending Legal Systems in the Philippines. Charles S, Lobingier, 21 L. Quar. 
Rev. 401. 

Certification of Shares. Frank Evans. 21 L. Quar. Rev. 340. 

Confusion of Patent Courts in the United States, The. Friiu v. Briesen, 
5 (The) Brief, 358. See 18 Harv. L. Rev. 217. 

Congress of Advocates at LiAge, 1^5, The. Edward Cox-Sinclair. Stating 
questions discussed before International Federation of Bars of Continental 
States, e.g.f whether an advocate should be allowed to practice other callings. 
31 L. Mag. & Rev. 74. 

Consideration v. Causa in Roman-American Law. Josefk H. Drake. A study 
of the Louisiana law of consideration for contracts as bearing upon the interpre- 
tation of the Porto Rican code. 4 Mich. L. Rev. 10. 

Covenants in Restraint of Trade. Anm. A niU collection of the English 
authorities. 1 19 Law T. 527. 

Development of Roman Marriage. A. H.J. Greenidge. 21 L. Quar. Rev. 357. 

Governmental Regulation of Prices. Eugene A. Gilmore. 17 Green Bag 627. 
See supra. 

Growth of the Power of Contract in the History of the Liability of Com- 
mon Carriers. Hugk E. IVillis. 5 (The) Brief, 231. 

International Agreements without the Advice and Consent of the Sen- 
ate. I. James T. Barrett. An historical and argumentative discussion of the 
power of tne states to enter, with the consent of Congress, into agreements or com- 
pacts with each other or with a foreign power. 15 Yale L. J. 18. 

Jury System, The. Wm. H. Holt. 67 Alb. L. J. 298. See supra. 

Lord Tenterden's Act in the United States, and an Important Omission 
therefrom. IVilmer T. Fox. Discussing the effect of omitting in the Massa- 
chusetts revised statute, and in the statutes of several states copied from it, the 
clause, *' to the intent that such person may obtain credit, money or goods." 61 
Cent. L. J. 344. 

Neutral Trade in Contraband of War. Dottgias Owen. Suggesting remedial 
measures to obviate the commercial disadvantages arising under the present state 
of International Law on this subject. 31 L. Mag. & Rev. 51. 

Observations on Secretary Taft's Text of June 18, 1905. John J. Crandall. 
28 N. J. L. J. 267. See supra. 

Personality of the Corporation and the State, The. W. Jethro Brown. 21 
L. Quar. Rev. 365. See supra. 

Province of the judge and of the Jury, The. I. G. Glover Alexander, An 
historical dissertation on the struggle in England between government and people, 
resulting in the rule that questions of fact are for the jury, those of law for the 
judge. 31 L. Mag. & Rev. i. 

Reform of the Patent Law. /. W. Gordon. A scholarly discussion of the reforms 
needed in the English Patent Law. 31 L. Mag. & Rev. 31. 

Short Studies in the Common Law. II. Torts. A. Inglis Clark. A general 
discussion of the nature of liability in tort. 2 Commonwealth L. Rev. 250. 

Sources of Ancient Siamese Law, The. Tokichi Masao. Setting forth texts from 
ancient laws of Siam and the Hindu Code of Manu to prove that ancient laws of 
Siam are of Hindu origin. 15 Yale L. J. 28. 

South African Railway Case and International Law, The — A Reply. 
/. IVestlake. An answer to an earlier article which criticised the position taken by 
the British Government. 21 L. Quar. Rev. 335. 

Stipulations in Fire Insurance Contracts affecting the Insured's Right of 
Recovery. Roy Elias Ressler. Collecting the authorities. 61 Cent. L. J. 323. 

Turkish Capitulations and the Status of British and other Foreign Sub- 
jects RESIDING IN Turkey. Edwin Pears. Arguing that by reason of the ficti- 
tious exterritoriality of British subjects in Turkey, their children for indefinite 
generations remain Dound in allegiance to England. 21 L. Quar. Rev. 40S. 

Uniform State Laws governing Negotiable Documents of Title. Francis B, 
James. 4 Mich. L. Rev. 41. 



BOOKS AND PERIODICALS. 227 



II. BOOK REVIEWS. 

Cases on Quasi-Contracts, Edited with notes and references. By James 
Brown Scott. New York: Baker, Voorhis, and Company. 1905. pp. 
xvi, 772. 8vo. 

Professor Scott's object in making this book was to provide a case book of 
moderate size for the use of students. The bulk of Juclge Keener's case book, 
including, as it frequently does, many cases reprinted in full, illustrative of the 
same application of a legal principle, makes it an unsatisfactory book for the 
use of students in a half course. Professor Woodruff's book, by an odd coin- 
cidence, appeared almost simultaneously with the work under review. 

By condensation of some cases and by the selection of short cases, wherever 
this was possible, Professor Scott has adequately covered at least as much 
ground as Judge Keener did. As the publishers of the new book were the 
owners of the copyright of the older work and placed it at the disposal of Pro- 
fessor Scott, he might fairly have made much larger use of it than he has done. 
Though many cases in the two books are identical, the laree majoritv are not, 
and the new cases are well selected. The notes greatly add to the value of the 
work, and the editor has used his learning in the Civil Law to furnish the book 
with illustrations from that source. In this way he has shown not only the 
antiquity, but the inherent propriety of treating quasi-contracts as a separate 
department of the law. The syllabus index is an excellent piece of work, the 
more meritorious because many case books are without such aid to the reader. 

The book gives rise to a suggestion, not a criticism, which concerns the mak. 
ine of case books generally and which involves a question upon which opinions 
wul doubtless differ. In the division of the law into various topics, it is impos- 
sible that each topic should wholly exclude every other. Consequently not onlv 
do treatises on one subject in fact deal with manv matters which are also deaft 
with by treatises on other subjects, but completeness of treatment can be 
obtained in no other way. We wish to raise the question whether it is desir- 
able to make case books upon the same plan. Case books are used only for the 
instruction of students. They do not and never can take the place in profes- 
sional use which treatises occupy. The utility of the plan of a case book for 
instruction in a law school must be the governing consideration. Is it desir. 
able, then, to include such matters as general average and contribution between 
sureties in a case book on quasi-contracts ? Both topics present instances of 
ouasi-contractual obligations, but are not the places for the student to consider 
them courses on admiralty and suretyship ? Professor Scott disclaims any treat- 
ment of these topics beyond what is essential to show the quasi-contractual 
nature of the obligation ; but is it possible to take up satisfactorily with stu- 
dents a number of cases on contribution between sureties, without going into 
the matter at large, in the same way as would be done in a course on surety- 
ship? It may be urged that this may well be done both in a course on surety- 
ship and in one on quasi-contracts, and that the student will gain from 
approaching the matter on several sides. Doubtless there are some questions 
of legal theory so fundamental that they must arise in more than one course, 
but, where possible, does not the great pressure for time in our legal courses 
require that duplication of work should be avoided ? If so, the author of a 
case book should not endeavor to touch upon every matter logically within its 
title, but should deal with such matters onlv as belong to that title exclusively 
or more naturally than to any other. Sucn matters as are included should be 
dealt with thoroughly, for students cannot satisfactorily study from cases a 
single aspect of a subject or of a decision. 

A related question mav be raised in regard to arrangement. Professor Scott 
follows Judge Keener m making such introductory heading as "Wherein 

3uasi-contract differs from a pure contract," and "Wherem quasi-contract 
iffers from a tort'* These are appropriate headings for a treatise, and 
under them an author would properly consider one aspect of decisions most of 



228 HARVARD LAW REVIEW. 

which would be cited elsewhere in the book for the point primarily decided by 
them. But teacher and student dealing with cases must generally deal with them 
once for all. The minute subdivision of a treatise cannot, therefore, be satis- 
factorily used as a model. The cases must be grouped according to their most 
general and obvious effect, and subordinate matters must be brought out in 
passing. The time when the student of Professor Scott's book might fairly be 
asked wherein a quasi-contract differs from a pure contract or a tort, is at the 
close of the book, for most of the cases in it in some degree aid in the answer, 
rather than after reading the sections specifically devoted to these questions. 

We have taken the occasion afEorded by the appearance of Professor Scott's 
book to suggest an inquiry we have had for some time in mind. In so doing 
we fully recognize, and wish to make it clear, that more than one answer to the 
inquiry will find champions and that even where the views here suggested are 
accepted, the application of them will give rise to new diflFerence of opinion. 
Each instructor must to some extent follow his own idiosyncrasies, whatever 
book he may use. Professor Scott has furnished abundant and well selected 
material, carefully edited and annotated. This is the one essential requisite, and 
it is fully satisfied. S. w. 



The Law op Bailments, including Pledge, Innkeepers and Car- 
riers. By James Schouler. Boston : Little, Brown, and Company. 
1905. pp. xxxii, 415. 8vo. 

This book, which is based upon a larger work by Professor Schouler, might 
better have been named Carriers, including Bailments, for more than two thirds 
of the work is devoted to a discussion of the peculiar law governing carriers, 
not only as bailees of goods but as transporters of passeneers. The one third 
concerned with the treatment of the general law of Bailments serves as an 
introduction enabling the author to give up the balance of the book to a con- 
sideration of those features of the law of Carriers which are sui generis. 

The principles of the law of Carriers are fairly well settled, and are compara- 
tively simple. The recent decisions seldom give more than the application of 
the old saws to the modern instances. Beyond question the author has, gen- 
erally speaking, stated both the principle and the precept ; the defects of the 
book are in the manner of presentation. 

Taking the volume as a whole, its dominant characteristic is carelessness. 
Carelessness marks the index, the heading of paragraphs, the rhetoric, and 
even the distinctions taken. We are told in the preface that *'the main purpose 
of this volume is to supply students and the professional lawyer alike witn an 
elementary treatise which may serve for study and practical use." Yet its con- 
tents are so inadequately and so unscientifically indexed as to reduce the prac- 
tice value of the book to the professional lawyer to a minimum. For example, 
one can find "stoppage in transitu'''* only by turning to the head "Carriers, 
Common (or Public) " ; then to the subhead, "termination of carrier's respon- 
sibility " (p. 409) ; and then to the sixth line under this subhead, which reads, 
"doubt; * care of; misdirection; stoppage in transitu^ 397, 398." And this 
is but one of many cases of needles in the haystack. 

The first few words of the opening sentence of each paragraph are printed in 
bold-faced type, an expedient which, in many instances, fails altogether to indi- 
cate the substance of the paragraph. Thus a paragraph which informs us that 
canal companies, tufi;-boats, and log-drivers are not common carriers because 
they do not control the transporting vehicle is headed, " But here, as elsewhere, 
the employment to be designated " (p. 152). See also paragraph 261, p. 139. 

It is in his rhetoric, however, that the author is most remiss. Only a few 
sentences need be quoted to demonstrate the book's weakness in this respect. 
At page 128, in discussing the tests for determining the status of guest, the 
author says, " Commonly the guest is a temporary sojourner who puts up at 
the inn to receive its customary lodging and entertainment ; and so long as one 
keeps this transient character." And at page 133, § 309, " and for all acts of his 
servants . . . directly occasioning loss or injury, the innkeeper must still re- 



BOOKS AND PERIODICALS. 229 

spond. . . . But other risks may probably be guarded against, or a special 
valuation set, if reasonable, upon a closed receptacle." And at p. 151, ** Nor 
is a stockyard company or other mere agistor or warehouseman for a carrier." 
These are merely conspicuous examples of the loose, careless construction 
which appears upon every page. 

It is, moreover, questionable whether the. distinctions taken by the author 
were all well considered. At page 121, *' the three distinguishing characteris- 
tics of a public bailment vocation " are pointed out to be, first, that a bailee in 
that vocation must serve all alike ; second, that he is an insurer ; and third, 
that, *' b^ way of offset or limitation to these conditions, the bailee may always 
claim his reasonable recompense in advance." Is it not true, however, that 
payment in advance can be exacted by all bailees, and that all can, if they 
desire, serve on credit ? Apropos of this it may be mentioned that the author 
does not specifically advert to what is often spoken of as one of the peculiar 
elements of the "public bailment vocation," namely, the duty of one in that 
vocation, within the limits of his public profession, to provide adequate facili- 
ties. This duty, however, is in a general way in special instances recognized 
in the book. See paragraphs 255, 256. In para^aph 232 it is stated that, 
"A boardine-house or lodging-house keeper, pursumg that means of livelihood, 
is again to oe distinguished from a private householder who only casually or 
upon special consideration receives a boarder or lodger into the familv." But 
paragraph 252 is to the efiEect that, " The innkeeper is an ordinary bailee where 
the vocation is not exercised towards the particular person and his personal 
property upon the strict innkeeping relation. And thus is it, also, in the usual 
business of boarding-houses and lodging-houses, by the better opinion, or with 
mere boarders and lodgers generally." See paragraph 239 for another unillumi- 
nating distinction. 

It is cause for sincere regret that a writer, who undoubtedly knows his sub- 
ject well, should have been so lax in his presentation of it. c. m. o. 



The Principles of the American Law of Contracts at Law and in 
Equity. Second edition. By John D. Lawson. St. Louis : The F. H, 
Thomas Law Book Company. 1905. pp. xxvi, 688. 8vo. 

As the number of decisions multiplies most rapidly each year, and as the law 
is continually changing and expanding, a new text- book carrving^ the cases 
down to date is always welcome. In the law of Contracts it is cloubly welcome 
because of the dearth of recent authoritative works. The old standard, Parsons 
on Contracts, has gone throueh so many editions that its unending sequence of 
editors' notes makes it now almost unusable. Aside from it, there is Professor 
Harriman's short work, of comparatively recent publication, and Page on Con- 
tracts, of the present year. The latter is a large treatise better adapted for 
exhaustive reference than to serve as a handbook. Professor Lawson*s work, 
of which the first edition appeared in 1893, is a book adapted to the hastv 
examination of the busy lawyer. In this respect it resembles Professor Ham- 
man's work, although its treatment is somewhat fuller. 

As a whole the work is more easily praised than criticised; but attention 
may be directed to certain defects of statement and treatment. In § 29, under 
Formation of the Contract, in attempting to explain the rule by which a contract 
is held to be completed upon the mailing of the acceptance, the author adopts 
the erroneous suggestion often found in decisions, the fiction of the mail being 
the agent of the oflFerer. As a matter of fact, there is no ground of agency at 
all : the post-office is a governmental function, not the agent of anybody ; and if 
it could be an agent, it would be the agent, not of the offerer, who does not hire it 
to bring the acceptance, but of the offeree, who pays the postage on the letter. 
So in § 253 the statement that a waiver does not require a consideration to be 
binding, seems too strongs as in general a waiver to be binding requires either a 
consideration or an estoppel. Aeain, the treatment of the subject of promises 
for the special benefit of a third person is open to criticism because of the 



230 HARVARD LAW REVIEW, 

failure to distinguish between promises for the sole benefit of a third person and 
those cases where the primary object is to discharee an obligation of the prom- 
isee. See 15 Harv. L. Rev. 767. So § 460, dealing with anticipatory breach, 
is objectionable in that it only gives one half the story, namely, the side in 
favor of the doctrine, when as a matter of fact there is strong support for the 
opposing view. See the collection of cases 14 Harv. L. Rev. 433, note 5. 
Apart from these defects of substance, a fault of form which detracts from the 
general excellence of the book, is the number of typographical errors scattered 
throuo:hout it. A few mistakes of this kind may be overlooked, but a work 
which displays more than its share suggests an almost unpardonable negligence 
in proofreadmg. 

On the other hand, to point out some of the salient points of excellence, the 
author's treatment of the Statute of Frauds is admirably concise and accurate. 
In §§ i2S~i6o his dealing with the law of persons in its relation to contracts is 
clear and thorough. So his discussion of the law as applied to wagering con- 
tracts and contracts of insurance is good. The arrangement of the book, which 
is closelv allied to that adopted by Page, makes a commendably logical presen- 
tation ot the subject, treating first of the various essentials to the formation of 
a contract, and then of the lespil and equitable remedies available when the 
contract relation has been established. G. H. P., jr. 



A Manual Relating to the Formation and Management op Mer- 
cantile AND Manupacturing CORPORATIONS, with Forms. A Book 
of Massachusetts Law. By George F. Tucker. Second Edition, Revised, 
including Revised Laws, Statutes of 1903- 1905, and Massachusetts Re- 
ports, Vol. 187. Boston : Little, Brown, and Company. 1905. pp. xxvii, 
401 . 8vo. 
This book, as its title implies, is not a treatise, but a book for practical, every- 
day use by the practicing lawyer, the business man, the investor, or the cor- 
poration official who desires to know what the law is and how to act in a given 
situation. It is gratifying to be able to say that there is an adequate index, 
a convenience which is none too frequently provided, though indispensable in a 
book intended for constant use. Tne changes that have come about in cor- 
poration law since the appearance of the first edition, in 1887, make apparent 
the need for this new edition. Like others of Mr. Tucker's works, the present 
volume is a book of Massachusetts law ; and while not so elaborate as Mr. 
Diirs work on the New Jersev corporation law, it is a book that will be dis- 
tinctly serviceable to Massachusetts lawyers. The author has very wisely 
included forms, and wisely, too, has not set them apart in an appendix, but has 
worked them into their appropriate places in the text. To make the forms 
readily available, a separate index of them has been made. 

The type, paper, and binding are excellent, but it would have been better to 
have subaivided the text more often, or to have indicated divisions by headings 
or spacing. There being no variation of type, and no spacing, it is difficult for 
the eye to find at once the particular reference obtained by use of the index. 

s. H. e. p. 



The American Judiciary. By Simeon E. Baldwin. New York : The Cen- 
tury Co. 1905. pp. xiii, 403. 8vo. 
Withm the compass of three hundred and eighty-five small pages, Judge 
Baldwin has succeeded in condensing a treatise upon the American judicial 
system. As the work was written for the American State Series, the purpose 
of which is to interest the general public and the elementary student by popular 
descriptions of our governmental organization, the author nas not attempted to 
do more than state clearly the nature and structure of the judicial branch of the 
government. For this reason, the book contains little of profit to the advanced 
student or the lawyer. 



BOOKS AND PERIODICALS. 23 1 

An Essay on the Principles op Circumstantial Evidence, illustrated 
by Numerous Cases. By the late William Wills. Edited by his son, Sir 
Alfred Wills. Fifth English Edition (1902). With American Notes by 
George E. Beers and Arthur L. Corbin. Boston, Mass. : The Book Com- 
pany. 1905. pp. xii, 448. 8vo. 

Elements op Law considered with reference to Principles of General Juris- 
prudence. By Sir William Markby. Sixth Edition. Oxford: At the 
Clarendon Press. London, New York, and Toronto: Henry Frowde. 
1905. pp. xii, 436. 8vo. 

Federal Supervision op Insurance Companies. An Address to the Na- 
tional Convention of State Insurance Commissioners, at Breton Woods, 
N. H., Sept. 27, 1905. By Frederick H. Nash. Boston. 1905. pp. 28. 

Hints por Forensic Practice : A Monograph on Certain Rules Appertain- 
ing to the Subject of Judicial Proof. By Theodore F. C. Demarest. New 
York: The Banks Law Publishing Company. 1905. pp. x, 123. i2mo. 

Lectures on the Relation between Law and Public Opinion in Eng- 
land DURING THE NINETEENTH CENTURY. By A. V. Dicev. LondoU 

and New York : The Macmillan Company. 1905. pp. xx, 508. 8vo. 

The Constitutional Decisions op John Marshall. Edited with an Intro- 
ductory Essay, by Joseph P. Cotton. Jr. In two volumes. New York and 
London: G. P. Putnam's Sons. pp. xxxvi, 462; v, 464. 1905. 8vo. 

Considerations in Appraising Damage to Forest Property. By 
B. E. Femow. Reprinted from The Forest Quarterly for May, 1905. 
Sewanee, Tennessee : The University Press, pp. 24. 8vo. 

A Selection of Cases on Domestic Relations and the Law op Per- 
sons. By Edwin H. Woodru£E. Second edition, enlarged. New York : 
Baker, Voorhis, and Company. 1905. pp. xv, 620. 8vo. 

A History of English Philanthropy from the Dissolution of the Monas- 
teries to the Taking of the First Census. By B. Kirkman Gray. London : 
P. S. King & Son. 1905. pp. xv, 302. 8vo. 

The General Principles op the Law of Corporations. (Being the 
Yorke Prize Essay for the Year 1902.) By C. T. Carr. Cambridge : At 
the University Press. 1905. pp. xiii, 211. 8vo. 

The Principles of the American Law op Contracts at Law and in 
Equity. Second Edition. By John D. Lawson. St Louis : The F. H. 
Thomas Law Book Co. 1905. pp. xxvi, 688. 8vo. 

The Reminiscences of Sir Henry Hawkins, Baron Brampton. 
Edited by Richard Harris. London : Edward Arnold. New York : Long- 
mans, Green & Co. 1905. pp. xi, 358. 8vo. 

Interference in Trade. A Collection of Cases on Strikes, Boycotts, etc., 
with Notes. By Wm. Draper Lewis. Philadelphia: International Printing 
Co. 1905. pp. 96. 8vo. 

The Principles of the Administrative Law of the United States. 
By Frank J. Goodnow. New York and London : G. P. Putnam's Sons. 
1905. pp. xxvii, 480. 8vo. 

Studies in Australian Constitutional Law. By H. Inglis Gark. 
Second Edition. Melbourne : Charies F. Maxwell (G. Partridge & Co.). 
1905. pp. XV, 447. 8vo. 

A Treatise on Equitable Remedies, in two volumes. By John Norton 
Pomeroy, Jr. Volume I. San Francisco : Bancroft Whitney Company. 
1905. pp. XXX, 932. 8vo. 

Jurisprudence, Law, and Ethics. Professional Ethics. By Edgar B. 
Kinkead. New York: The Banks Law Publishing Company. 1905. 
pp. vii, 381. 

New York State Library. Yearbook of Legislation 1904. Edited by 
Robert H. Whitten. Albany: New York State Education Department 
1905. 8vo. 

The Law of Fire Insurance. Bv George A. Clement. In two volumes. 
Volume II. New York : Baker, Voorhis, and Company. 1905. pp. cxvii, 
807. 8vo. 



232 HARVARD LAW REVIEW. 

Addresses, Historical, Political, Sociological. By Frederic R. Cou- 

dert New York and London : G. P. Putnam's Sons. 1905. pp. xviii, 

952. 8vo. 
Cases on Quasi-Contracts. Edited with Notes and References, by James 

Brown Scott. New York : Baker, Voorhis, and Company. 1905. pp. xvi, 

772. 8vo. 
The American Law relating to Income and Principal. By Edwin A. 

Howes, Jr. Boston : Little, Brown, and Company. 1905. pp. xviii, 104. 

i2nio. 
American Railroad Rates. By Walter Chad wick Noyes. Boston : Little, 

Brown, and Company. 1905. pp. 277. 8vo. 
Criminal Responsibiuty. By Charles Mercier. Oxford: At the Clarendon 

Press. 1905. pp. 232. 8vo. 



HARVARD 

LAW REVIEW. 

VOL. XIX. FEBRUARY, 1906. NO. 4. 

EQUITABLE CONVERSION.^ 

VI. 

IT has often been declared judicially that the equitable conver- 
sion of money into land has the effect of vesting the equitable 
ownership of the land in him in whose favor the conversion is 
made, and not unfrequently the same effect, mutatis mutandis^ has 
been attributed to the equitable conversion of land into money. 
Moreover, the courts which have so declared, while they have gen- 
erally had before them no more than a single concrete case of 
equitable conversion, have made the declaration broadly, and as 
applicable to equitable conversions of every kind, or, at least, they 
have not intimated that the doctrine which they were declaring 
involved any division of equitable conversions into classes, nor 
that there was any class of such conversions to which the doctrine 
was not applicable. In order, however, to test the correctness of 
the doctrine, it is necessary to consider it in its application to each 
of the two great classes of equitable conversions, namely, those 
which are direct and those which are indirect ; and, for the pur- 
pose of considering it in its application to such equitable conver- 
sions as are indirect, it will be desirable to separate the latter, as I 
have done in a previous article,^ into such as are caused by the 
common bilateral contract for the purchase and sale of land, those 
which are caused by a unilateral covenant to purchase or sell land, 
and those which are caused by means of a trust or duty to purchase 
or sell land. 

1 Continued from 19 Harv. L. Rev. 96. 
s 18 Harv. L. Rev. 250-268. 



234 HARVARD LAW REVIEW. 

When a contract is entered into for the purchase and sale of 
land, and the purchaser dies pending the contract, it has always 
been held, as we have seen,^ that his heir or devisee is entitled to 
enforce the contract against the seller for his own benefit, and at 
the expense of the purchaser's executor, and this has been sup- 
posed to involve the doctrine that the land passes in equity from 
the seller to the purchaser the moment when the contract is made, 
and so passes on the death of the latter to his heir or devisee, 
though I have endeavored to show ^ that it involves only the doc- 
trine that, on the death of the purchaser, his right under the con- 
tract to have the land conveyed to him devolves in equity on his 
heir or devisee, just as the land would if the contract had been 
performed before the purchaser's death, though the purchaser's 
concurrent obligation to pay the purchase money devolves, both 
at law and in equity, on his executor. If I am right in this, it will 
follow that the decisions which have been made in favor of the pur- 
chaser's heir or devisee establish only that such heir or devisee is 
entitled to enforce the contract specifically for his own benefit, — 
not that he is the owner in equity of the land purchased. But, 
however that may be, it is important to ascertain how the question 
stands upon principle. Clearly, the burden rests upon those who 
assert that the contract itself has the effect of passing the land in 
equity, to show some principle of equity which gives the contract 
that effect What do they show? They say equity considers as 
done whatever is agreed to be done. Equity, however, has no such 
principle as that, and the only one which resembles it is the prin- 
ciple that whatever is agreed to be done equity considers as done 
at the time when it is agreed to be done," and when, consequently, 

1 i8 Harv. L. Rev. 250-25 i. * Ibid, 

* The case of Gibson v. Lord Montfort, i Ves. 485, is very instructive in this con- 
nection. The question there was whether the heir or the devisee of a deceased testa- 
tor was entitled to certain land which the testator had contracted for before making 
the first codicil to his will, — which, however, was made before the contract was per- 
formed, and even before the date fixed for its performance ; and the question between 
the heir and the devisee was supposed to depend upon whether the land passed to the 
testator in equity before the date of the first codicil ; and Lord Hardwicke aaid 
(p. 494) : " The contract was before the first codicil, and went a great way to end the 
question. But the first codicil came before the time for the execution of these articles, 
which is the only difficulty ; for, though things agreed on are looked upon as executed 
here, yet this is not such an agreement as could be executed at that time, the time for 
execution not being come ; but that seems too nice, for, on a contract for lands, if the 
party die before the time for making the conveyance comes and without a will, the 
court considers it for the benefit of the heir that the land should be purchased for him, 
and, if so, why not for the devisee ? " It seems plain, therefore, that Lord Hardwicke 



EQUITABLE CONVERSION. 235 

it ought to be done, and it is needless to say that that principle 
furnishes no warrant for saying that the contract in question passes 
the land in equity the moment when it is made, especially as a con- 
siderable length of time always elapses between the making and 
the performance of a contract for the purchase and sale of land, 
and the contract, if properly drawn, always names a future day 
when the purchase shall be completed. Moreover, the question is 
whether the land passes to the purchaser in equity at the moment 
when the contract is made, — not whether it passes to him at 
any subsequent time, for it is confessedly at the moment when it 
is made that the contract works an equitable conversion, and it is 
because it works an equitable conversion that it is supposed to pass 
the land in equity, nor is it possible to assign any other time for 
the passing of the land in equity prior to the time fixed for the 
completion of the purchase. Finally, if, as will be shown to be the 
fact, an equitable conversion of money into land by means of a 
unilateral covenant to purchase land or by means of a trust or duty 
to purchase land never passes the land in equity, this will prove 
that there is no necessary connection between the indirect equi- 
table conversion of money into land and the passing of the title 
to the land in equity, and that the former can take place without 
the latter ; and yet practically the only reason why the courts have 
declared that a contract for the purchase and sale of land passes 
the land in equity is that they supposed that to be the only theory 
upon which the heir or devisee of a purchaser who dies pending 
the contract, can enforce the latter for his own benefit. Upon the 
whole, then, it seems pretty clear upon principle that a contract 
for the purchase and sale of land has no other effect in equity than 
it has at law unless and until it is broken by the seller's failure to 
convey the land according to his agreement, and unless the pur- 
chaser die before any such breach, though, in the latter event, the 
purchaser's right under the contract will devolve in equity upon his 
heir or devisee as before stated. 

professedly decided the case upon authority, and not upon principle, i. /., he regarded 
it as settled by authority that if the testator had died the day on which he made the 
codicil, but without making it, the land would have descended to the heir, and, if so, 
it ought to pass by the first codicil to the devisee. 

So in Goodwyn v. Lister, 3 P. Wms. 387, Lord Chancellor Talbot said (588) : 
" Whenever one man enters into articles for the sale of an estate, and agrees to convey 
it to another, in consideration of a sum of money engaged to be paid by that other 
person ; from the time the articles otight to be performed^ the one becomes entitled to 
the estate, and the other a creditor for the purchase-money." 



236 HARVARD LAW REVIEW. 

What is the effect in equity of the contract for the purchase and 
sale of land upon the seller's right to receive the purchase money, 
over and above the effect of the same contract at law? It seems 
that it is nothing. The courts have, indeed, tried hard to persuade 
themselves that, as such a contract passes the land in equity to the 
purchaser, so it passes the purchase money in equity to the seller. 
It has (for example) been a favorite saying with them that, from 
the moment when such a contract is made, the seller becomes a 
trustee of the land for the purchaser, and the purchaser becomes 
a trustee of the money for the seller ; but they have never been 
able to show that the second part of this proposition has any 
meaning or has borne any fruit, nor, in truth, has it any meaning 
nor has it ever borne, nor can it ever bear any fruit, and the reason 
is obvious, namely, that, while the seller has the same right to have 
the purchase money paid to him that the purchaser has to have 
the land conveyed to him, there is this difference between the land 
and the money, namely, that the land is identified while the money 
is not, and that difference renders it impossible that the seller 
should own the money, either at law or in equity, while it remains 
in the hands of the purchaser, or that the purchaser should hold 
any specified money in trust for the seller as such. Before the 
seller can become entitled to be paid any specific money by the 
purchaser, there must be an appropriation of some specific money 
to the purpose of paying for the land, and such an appropriation 
can be made only by the combined action of the purchaser and 
the seller. 

I have heretofore stated^ what will become of the purchase 
money in the event of the seller's dying pending the contract, i. e., 
that his right under the contract will, like his other contractual 
rights, pass, at his death, to his executor, who will, in all respects, 
stand in the shoes of the deceased as to his right to receive the 
purchase money, and who will need only the same aid from equity 
that the deceased would have needed, namely, that of compelling 
an unwilling purchaser to pay for the land by enforcing the con- 
tract specifically, instead of leaving the seller or his executor to 
such special damages as a jury will give him for the loss of the 
bargain. The seller's executor does, indeed, stand in greater need 
of this aid from equity than the seller does, for, though the latter 
fail to obtain specific performance, he will still keep the land while, 

1 i8 Harv. L. Rev. 9-10. 



EQUITABLE CONVERSION. 237 

upon the death of the seller, the land will devolve, not upon his 
executor, but upon his heir or devisee ; and, though it has been 
held that, if the executor cannot compel the purchaser to pay for 
the land, equity will compel the heir or devisee to convey the land 
to him, yet, as has been seen in a previous article,^ it seems impos- 
sible to discover any principle which will warrant a court of equity 
in giving such relief 

If a person covenants that he will lay out a given sum of money 
in the purchase of land and will settle the land in such manner as 
is stated in the covenant, or if a trust be created for the same pur- 
pose, it is certain that no land will pass in equity to any of the 
persons in whose favor the settlement is to be made until the land 
is actually purchased pursuant to the covenant or trust, for until 
then it is wholly uncertain what land will be settled. That no 
title to land can pass from one person to another, either at law or 
in equity, until the land is identified, is so plain a proposition that 
it requires only to be stated in order to gain the assent of every 
intelligent person. Fortunately, however, it is not necessary, in 
this instance, to rely merely upon the intrinsic merits of the prop- 
osition for establishing its truth, for the proposition that no title 
passes, in the case now under consideration, is established by an 
experience which no one can gainsay. In an English settlement 
of land, the estates limited consist, as we have seen,^ almost wholly 
of estates for life and estates tail. These estates, moreover, origi- 
nally differed but little from each other in respect to the rights of 
the tenant in possession, for the time being; and, though tenants 
in tail, if in possession and of full age, have now for centuries been 
able to exercise complete control over the estate, yet they can do 
so, even to this day, only by first converting the estate tail into an 
estate in fee simple. How can this be done? It can now be done 
by simply executing and acknowledging a disentailing deed, and 
having the same enrolled, but, prior to Jan. i, 1833, it could be 
done only by levying a fine or suffering a common recovery, f. ^., 
by levying a fine a tenant in tail could cut off his issue in tail, and 
so convert the estate tail into a base fee, and by suffering a com- 
mon recovery, he could cut off, not only his issue in tail, but also all 
those in remainder or reversion expectant upon the termination of 
the estate tail, and so convert the latter into an estate in fee simple 
absolute. Could a fine be levied or a recovery suffered, however, 

1 18 Harv. L. Rev. 252-254. « 18 Harv. L. Rev. 257. 



238 HARVARD LAW REVIEW, 

by a tenant in tail who was so in equity only, the legal estate being 
in a trustee? Such a tenant could go through the forms of levy- 
ing a fine or suffering a recovery, but his acts would be wholly 
inoperative at law, as courts of law would regard him as having 
no estate whatever in the land. Courts of equity, however, could 
never have permitted equitable estates tail to be created, if a con- 
sequence had been that they would be inalienable ; and accord- 
ingly they held ^ that a fine levied or a recovery suffered by an 
equitable tenant in tail was perfectly valid in equity, i. ^., that it had 
the same effect in converting the equitable estate tail into an equi- 
table estate in fee simple that a fine levied or a recovery suffered 
by a legal tenant in tail has in converting the legal estate tail into 
a legal estate in fee simple. Suppose, then, a covenant or trust to 
have been created, any time in the eighteenth century, for laying 
out money in the purchase of land, and for settling the land, and 
that, if the covenant or trust had been performed, one A, a person 
of full age, would have been tenant in tail in possession of the land, 
but that the covenant or trust had not been performed and A did 
not wish to have it performed, but wished to receive the money 
instead. Prior to the time of Lord Cowper, he could have obtained 
payment of the money by filing a bill and obtaining a decree for 
its payment to him, but Lord Cowper refused to allow such bills, 
or rather to make such decrees,' thinking them to be in violation 
of the rights of those claiming, or who might in future claim, under 
the subsequent limitations of the settlement, covenanted or directed 
to be made, or of those who owned the reversion, if any, expectant 
on the termination of all the limitations of the settlement. How 
then could A obtain the money, if it was money and not land that 
he wanted ? for he was clearly entitled to obtain it in some way. 
If it was true that A's right under the unperformed covenant or 
trust already consisted in the ownership of land in equity he could 
suffer a recovery of his existing equitable interest, and then, hav- 
ing become the person solely interested in the performance of the 
covenant or trust, and having also destroyed the reversion, if 

^ " Trust estates are by their nature incapable of the process of fines or recoveries. 
Yet fines are levied, and recoveries are suffered of them ; and fines and recoveries are 
as necessary to bar entails of equitable estates, as they are to bar entails of legal 
estates." Butler's note to Co. Litt. 290 b, s. XVI. In Pearson v. Lane, infra^ p. 247, 
the fine was levied, and in Henley v, Webb, infra^ p. 239, the recovery was suffered, by 
one who had only an equitable estate in the land. 

* Colwall V, Shadwell, cited in Short v. Wood, i P. Wms. 471, and in Chaplin v, 
Horner, ibid. 485. See al80/<r Lord Hardwicke in Cunningham v. Moody, i. Ves. 174. 



EQUITABLE CONVERSION. 239 

any, expectant on the termination of the limitations covenanted or 
directed to be made, he could elect not to have the covenant or 
trust performed, and require the money to be paid over to him. 
Was this course open to him ? No, it seems never to have been 
supposed or claimed by anyone that it was ; but, on the contrary, 
it was admitted on all hands that the only way in which A could 
convert his right into an absolute ownership of the money was 
by first enforcing specific performance of the covenant or trust, 
and then suffering a recovery of the land, and, finally, selling the 
land ; and experience proved that the most feasible way of doing 
this often was for A to procure some landowner to convey an es- 
tate to the person or persons bound by the covenant or trust, on 
receiving from him or them the money covenanted or directed to 
be laid out in land, but under an agreement with A that the latter 
should suffer a recovery of the land, and thereupon reconvey it to 
its original owner on receiving from him the money which he had 
received for the land. The first time that this device (which was 
called borrowing the estate in question) was resorted to, was in the 

case of V, Marsh,^ 1723, while the last which appears in print 

was Henley v. Webb,* 1820. In the latter, the report states that 
Henley, who occupied the position which I have supposed A to 
occupy, obtained from Sir J. Webb, Sept. 15, 1 781, at the price of 
;f 14,200, being the sum which Henley was entitled to have laid 
out in the purchase of land, a conveyance in fee of an estate, — 
which Henley, on the same day, conveyed, at the same price, to 
the trustees of the ;f 14,200, and soon afterwards suffered a recov* 
ery thereof, being equitable tenant in tail under the trustees ; and, 
having thus obtained the fee simple of the estate, he reconveyed it 
to Webb at the same price at which he had purchased it, having 
in fact agreed to do so when he made the purchase, the intent of 
the transaction being to n^ake himself master of the ;^ 14,200. 

I trust that the reader will not want any better proof than the 
foregoing case affords that Henley's right to have the ;^I4,200 laid 
out in the purchase of land, and to have the land conveyed to him 
in tail, did not make him a tenant in tail of land in equity. How, 
then, are we to account for the fact that we find the contrary so 
constantly asserted or assumed by courts of equity? I fear we 
shall have to account for it in the same way in which we have 



1 Reported by Peere Williams in a note to Chaplin v. Horner, i P. Wms. 48d 
> 5 Madd. 407. 



240 HARVARD LAW REVIEW. 

already had to account for so many errors, namely, by the fact 
that the courts of equity constantly assume that money which 
is only indirectly converted into land in equity is so converted 
directly, — in which case the money would in truth be land in 
equity, i. ^., for the purposes of devolution. In Henley v. Webb, 
for example, if the fact had been that Henley had recently died, 
and the court was called upon to decide, and did decide, that, at 
his death, the £\/^,2QO devolved upon his issue in tail and the 
court thought it necessary to give a reason for its decision, the 
reason would undoubtedly have been that the ;^I4,200 was land 
in equity. Why, then, could not Henley have suffered a recovery 
of the ;^I4,200 in its quality of land, thus avoiding the expense, 
vexation, and delay, and even the risk of failure by his death, 
necessarily incident to the circuitous proceedings detailed in the 
report? Because a recovery never could be suffered, even in 
equity, of what was in fact money, though it were, by means of a 
fiction, deemed land in equity.^ It was only of specific and iden- 
tified real estate, u ^., real estate in fact, that a recovery could be 
suffered or a fine levied, and courts of equity differed from courts 
of law on that point only in holding that an equitable title to such 
real estate in the person levying the fine or suffering the recovery 
was sufficient to render the fine or recovery valid in equity. The 
reader will see, therefore, that, when money is covenanted or 
directed to be laid out in land and the land to be settled, it is 
when the money is thus laid out, and not till then, that any of the 
persons in whose favor the covenant is made, or the direction 
given, first become, by virtue of such covenant or direction, owners 
of land in equity in any other than a purely fictitious sense, even 
assuming that the money may, by a fiction, properly be termed 
land in equity before it is actually laid out in land. 

When a covenant or trust, instead of being to lay out money in 
the purchase of land, and to settle the land, is to sell land and 
make some disposition of the proceeds of the sale, it is equally 
clear that none of those in whose favor such proceeds are to be 
disposed of can possibly acquire the ownership, either at law or in 
equity, of any specific money until the land is actually sold, as, 
until then, there will be no identification of any money. This fact, 

^ " A fine cannot be levied of money agreed to be laid out in a purchase of land to 
be settled in tail ; but a decree can bind such money equally as a fine alone could have 
bound the land in this case, if bought and settled." Per Sir John Trevor, M. R. in 
Benson t Benson, i P. Wms. 130. 



EQUITABLE CONVERSION. 241 

however, is not material in respect to the devolution of the rights 
created by the covenant or trust, as those rights will devolve in 
the same manner, both at law and in equity, before the sale of the 
land as the proceeds of the sale will devolve after the sale, namely, 
upon the executor of the deceased. That this is so as to the equi- 
table conversion of the seller's land into money, caused by the 
ordinary bilateral contract for the purchase and sale of land, we 
have already seen,^ and the same thing is true of every indirect 
equitable conversion of land into money. In respect, therefore, 
to the devolution of property indirectly converted in equity, our 
view need not be extended beyond the conversion of personal 
property into real property, and, in respect to devolution by will, 
the field is still more narrowed. In respect, indeed, to the equi- 
table conversion of money into land, caused by the bilateral con- 
tract for the purchase and sale of land, the right created by the 
contract in favor of the purchaser is always devisable,^ and it seems 
that it will pass by a specific devise of the land contracted for, or 
by a devise of all the testator's real estate, or of all his real estate 
in such a place, provided the land contracted for is in that place, 
or by a devise of the right itself under any words of description 
which sufficiently identify it; but it seems that it will not pass 
under any words which are applicable only to personal estate, un- 
less the testator so identifies the right as to show that he means 
to pass it by such words ; for there will be no equitable conversion 
of the purchaser's money into land, unless he be entitled to enforce 
the contract specifically, and, if he be so entitled, the right created 
by the contract in his favor will necessarily be a hereditament, i. ^., 
a right descendible to the heir.^ 

1 18 Harv. L. Rev. 10, 255. 

* Atcherley v, Vernon, 10 Mod. 518; Davie v. Beardsham, i Ch. Cas. 39,3 Ch. Rep- 
4; Lady Fohane's case, cited in i Ch. Cas. 39; Greenhill v. Greenhill, 2 Vem. 679; 
Prideux v, Gibben, 2 Ch. Cas. 144; Potter v. Potter, i Yes. 274, 437, 3 Atk. 719; 
Gibson v. Lord Montfort, i Ves. 485. 

* In Rushleigh v. Master, i Ves. Jun. 201, 3 Bro. C. C. 99, by marriage settlement, 
;f 5.000, a part of the wife's marriage portion, was vested in trustees in trust to lay the 
same out in land to the use of the husband for life, remainder to wife for life, remain- 
der, in the events which happened, to husband in fee ; and hence the money belonged 
absolutely to the husband, subject only to an equitable conversion of it in favor of the 
wife for her life in the event of her surviving the husband,— which she did. It was 
assumed, however, that the money was wholly converted into land in equity, not only 
as to the wife, but as to the husband as well. In short, it was assumed that the money 
had ceased to have in equity the quality of money, having acquired the quality of land 
instead ; and accordingly, the husband having died intestate as to the ;£'5,ooo, it was 
assumed that it descended to his heir as land ; and the question was whether it passed 

16 



242 HARVARD LAW REVIEW. 

In respect, however, to equitable conversions of money into land 
by means of unilateral covenants and trusts, it is to be observed, 
first, that such covenants and trusts are nearly always for the pur- 
chase and settlement of land, and that in all such cases the equi- 
table conversion of the money into land is, on principle, confined 
to the estates for life and estates tail covenanted or directed to be 
limited by the settlement, and hence the rights created by such 
covenants and trusts are, on principle, never devisable, though the 
courts hold, as we have seen,^ that the entire interest in the money 
is, in such cases, converted in equity into land, not only as to those 
in whose favor the land is covenanted or directed to be settled, but 
also as to the settlor and those claiming under him. Secondly, a 
devise of land which has any reference to " place " will not pass a 
right created by a covenant or trust to purchase and settle land,' 
as there is, in such a case, no identified land, and yet the testator 
shows, by his reference to place, that it was only actual and identi- 
fied land that he intended to devise. Nor can such a right, as it 
seems, pass under words of bequest, i. e., words which are appli- 
cable only to personal estate, unless the testator shows affirma- 
tively that he intends to pass such right under such words ; ' for 

as land under the will of the heir, the same having never been laid out in land ; and it 
was held that it did so pass, namely, under the words " all other my messuages, lands, 
tenements, and hereditaments" Lord Thurlow saying that (i Ves. Jun. 404 a) if the 
testator had said, " all my estates in law and equity," this would have passed ; and the 
words " all my estates whatsoever and where soever " are equally strong. He also uses 
the word " hereditament,'* and this is a hereditament, for it is descendible. 
1 18 Harv. L. Rev. 261, 270; 19 Harv. L. Rev. 24, proposition 8. 

* I fear, however, this statement must rest upon principle rather than authority. In 
Guidot V. Guidot, 3 Atk. 254, Lord Hardwicke decided that money which he held to 
be converted into land passed, under the will of the owner, by the words, " Lands 
lying in Islington, and in Elsfield in Hampshire, or elsewhere.** I say '* money which 
he held to be converted into land," for Lord Hardwicke treated the money as con- 
verted " directly *' into land, and therefore as having passed in its quality of land. He 
said (256) : " If it had not been for the locality, estates in Middlesex and Hampshire, 
no doubt could have arisen; but then follows ' or elsewhere,' which is the most com- 
prehensive word he could have used. It is said the lands do not lie anywhere, for they 
are not yet purchased. When people make such descriptions as the testator had done 
here, they intend to pass everything they have in the world; now the money is some- 
where, and that by the transmutation of this court is changed into land." 

If the case had been one in which the testator had merely a right to have money 
exchanged for land, and to have some estate in the land conveyed to him, Lord 
Hardwicke's reasoning would clearly not have been applicable to it. Such a right is 
not situated anywhere, as it is incorporeal. The case of Lingen v. Sowray, i P. Wms. 
172, involved the same point as Guidot v. Guidot, and was decided the same way. 

• Biddulph V. Biddulph, 12 Ves. 161 ; In re Greaves's Settlement Trusts, 23 Ch. D. 
3*3. 316,^ Fry, J.; In re Duke of Cleveland's Settled Estates, [1893] 3 Ch. 244; 



EQUITABLE CONVERSION. 243 

the owner of such a right has no ownership of the money with 
which the land is to be purchased, even if such money is identified. 
Yet here again we are confronted with the fact that the courts 
unwarrantably extend the doctrine of the equitable conversion of 
money into land by means of directions contained in wills to cases 
in which no person has a right to enforce such directions, 1. ^., to 
require an actual conversion to be made ; ^ and, in all such cases, 
the courts are forced to treat the equitable conversion which they 
assume to exist as if it were created by equity itself, u ^., as if it 
were direct, and hence to treat the money, for the purposes of 
devolution, as if it were actually land in equity, instead of being 
merely liable to be exchanged for land, and, when that step has 
once been taken, it is not difficult for the courts to take another 
step and say that a testator who, if there were in truth an equitable 
conversion, would have only a right to have the money laid out in 
land, and to have the land settled, is the owner of the money itself, 
and, therefore, that, while such money will descend as land in case 
of intestacy, yet its owner may devise it as land or money at his 
pleasure. This seems to be the only way of explaining the deci- 
sions of Sir G. Jessell, M. R., and the Court of Appeal in Chandler 
V, Pocock.* If the money in that case had been in truth indirectly 
converted into land in equity, and the settlor's daughter had merely 
had a right to have land purchased with the money and settled, 
and the case had been so regarded, it would have been quite 
impossible for the courts to hold that such right passed under a 
bequest of all the daughter's personal estate. I have endeavored, 
however, to show, in another place,* that there was no indirect 
conversion of the money into land in equity, and the same thing 
may be proved, even more conclusively, in another way ; for the 
daughter's father settled the original land only upon himself, the 
daughter's husband and the daughter, for their respective lives, 
retaining in his own hands the reversion in fee expectant upon the 
determination of those three life estates ; and, when the land was 
sold under the power contained in the settlement, of course the 
proceeds of the sale took the place of the land, and, when the 

Chandler w. Pocock, 15 Ch. D. 491, 499, where Jessell, M. R., after expressing himself 
to the effect stated in the text, adds: "Not only is that covered by authority, but I 
shoald think that the question was not arguable at the present day, as the authorities 
are so old." 

1 19 Harv. L. Rev. 24, proposition 8. 

« 15 Ch. D. 491, 499, 16 Ch. D. 648. " See 19 Harv. L. Rev. 95. 



244 HARVARD LAW REVIEW. 

daughter died and her will took effect, the last of the three rights 
created by the settlement came to an end, the husband and father 
having previously died. It was impossible, therefore, that any- 
thing should pass, under what was held to be an appointment by 
the daughter's will, except the fund produced by the sale of the 
land, and that was all that was held to pass ; and, though all the 
difficulty arose from its being held, erroneously, as it is conceived, 
that that fund had been converted in equity into land, yet it was 
the assumption that the fund was land in equity that made possible 
a decision which would have been impossible on the supposition 
that the same fund, instead of being land in equity, was merely 
liable to be exchanged for land. 

When a contract, trust, or duty to convert money into land or 
land into money is not performed as soon as those in whose favor 
the conversion is to be made are entitled to have it performed, 
what compensation are the latter entitled to receive for the delay? 
In the case of a bilateral contract for the purchase and sale of 
land, neither party can claim any compensation for non-perform- 
ance by the other until the latter is in default, /. e,, has broken the 
contract, and, as the two sides of the contract are to be performed 
concurrently, neither party can put the other in default until he 
has done everything towards performing his own side of the con- 
tract that he can do without the co-operation of the other. If, 
therefore, either party desires a prompt performance by the other, 
he should, as soon as the time for performance arrives, seek the 
other, and notify him of his own readiness, willingness, and ability 
to perform his side of the contract, and should offer to do so if 
the other will concurrently perform his side, and, if the latter 
refuses or neglects to do so, he will be in default If a place, as 
well as a time, for performance have been agreed upon, each party 
must at his peril, unless the contract have, in the meantime, been 
performed, or the other party put in default, be at the place 
agreed upon at the close of business hours on the day agreed 
upon, and, if the other party be not there, he will then be in 
default And when either party is thus put in default, the other 
will be in a condition to maintain an action at law for damages, or 
a bill in equity for specific performance, at his option, and, in case 
of the latter, he will, besides specific performance, obtain such 
compensation for the other's breach of contract as shall be just 

In the case of a unilateral covenant to purchase land, the 
covenant will be broken by any failure of the covenantor to 



EQUITABLE CONVERSION, 245 

perform it according to its terms, and, if there be also a covenant 
to settle the land when purchased, he who would have been 
entitled to the immediate possession and enjoyment of the land, 
if purchased in accordance with the covenant, will be entitled, 
immediately on the breach of the covenant, to file a bill and obtain 
a decree for its specific performance, together with a compensa- 
tion for the breach, and the proper measure of such compensation 
will, it seems, be the interest on the money covenanted to be laid 
out in land from the time when the plaintiff was entitled to have 
the land purchased to the time when it is actually purchased. 
If the breach shall consist only in not settling the land when 
purchased, the same person will be entitled to all the remedies 
incident to an equitable ownership of land. 

The reader must, however, bear in mind that such unilateral 
covenants are commonly contained in marriage articles and mar- 
riage settlements, made by the intended husband, and that the 
land to be purchased is almost always covenanted to be settled, 
in the first instance, on the husband for life; and, therefore, there 
can be no breach of the covenant till the husband's death. 

In the case of a trust or duty to purchase and settle land, or to 
sell land and dispose of the proceeds of the sale, it is plain that 
the creator of the trust or duty intends that those in whose favor 
the land to be purchased is to be settled, or in whose favor the 
proceeds of the land to be sold are to be disposed of, shall enjoy 
the money to be laid out in land from the time when it is first 
authorized to be so laid out to the time when it shall be actually 
laid out, or shall enjoy the land directed to be sold from the time 
when it is first authorized to be sold to the time when it is actually 
sold. How shall the creator of the trust or duty give effect to 
such his intention ? Clearly, he can do so in one way only, namely, 
by making a gift of the money or the land. /. ^., of the income 
of the one or the other, for the period of time just specified, to 
the person or persons who would have been entitled to receive 
the income of the land, if the money had been laid out in land, 
or to receive the income of the proceeds of the sale, if the land 
had been sold, as there would otherwise be a resulting trust as to 
such income in favor of the creator of the trust or of his repre- 
sentative, or, if a duty be created, instead of a trust, the land to be 
sold or the money to be laid out will continue to be the property 
of the creator of the duty, or of his representative, both at law 
and in equity, until the land is actually sold or the money laid out 



246 HARVARD LAW REVIEW. 

Accordingly, all well-drawn wills or deeds, creating such trusts or 
duties, contain such a gift in express terms.^ Suppose, however, 
the creator of a trust or duty omits to make any such gift? It 
seems to be clear that the gift ought to be implied.* 

It may happen that the creator of a trust or duty, instead of 
making such a gift of the intermediate income of the money to be 
laid out in land or of the land to be sold, as is indicated in the 
preceding paragraph, directs that the money to be laid out shall 
comprise not merely the principal sum named, but also the inter- 
mediate income thereof, or that the money to be disposed of shall 
comprise, not only the proceeds of the land to be sold, but also 

^ Lechmere v. Earl of Carlisle, 3 P. V^ms. 211 ; Guidot v, Gaidot, 3 Atk. 254; 
Doughty V. Bull, 2 P. Wms. 320; Coventry v, Coventry, 2 Atk. 366; Thornton v. 
Hawley, xo Ves. 129; Williams v. Coade, 10 Ves. 500; Biddnlph v. Biddolph, 12 Ves. 
161 ; Kirkman v. Miles, 13 Ves. 338 ; Maugham v. Mason, i Ves. & B. 410 ; Hereford 
V. Ravenhill, i Beav. 481, 5 ibid. 51 ; Wrightson v, Macaulay, 4 Hare 487 ; Batteste v. 
Maunsell, Irish Reports, 10 £q. 97, 314. 

* A gift of the proceeds of a sale of land to A for life is a gift to him of the rents 
and profits of the land till sale. In re Searle, [1900] 2 Ch. 829. This appears to be 
the true explanation of the decision in Earl of Coventry v. Coventry, 2 Atk. 366, 
where a testator, being seised in fee of the manor of A, and having a lease of the 
manor of B, directed his executors to exchange his manor of A for the reversion of 
the manor of B. The manor of B, of which the Church of Lincoln was seised in fee, 
was situated in Oxfordshire, while the manor of A was situated in Lincolnshire and 
near the Church of Lincoln, and, for this or some other reason or reasons, the testator 
seems to have had no doubt that the exchange which he directed would be for the 
advantage of the Church of Lincoln, and, in fact, he gives as a reason for directing the 
exchange that he desired " to be a benefactor to the Church of Lincoln " ; and it 
appears, therefore, not to have occurred to him that the Church of Lincoln might 
decline to make the exchange. Nevertheless, the Church of Lincoln did so decline, 
and its declination was the cause of the present suit. The testator had directed that, 
when ^he exchange was made, the reversion of the manor of B should be settled on 
his wife for life, remainder to his issue male by her in special tail, with divers 
remainders over ; and, under these limitations, the manor of B would, if the exchange 
had been made, have been vested in the plaintiff for life in possession, remainder to 
his issue in tail male ; and, as the exchange could not be made, the plaintiff insisted 
that he was entitled to the manor of A ; and it would seem that, on the principle stated 
in the text, he was entitled to the possession and income of the manor of A until the 
exchange could be made, and, if that time never arrived, he and those claiming 
under him would be entitled to hold possession of the manor of A in perpetuity ; and 
Lord Hardwicke so decreed, saying (369) : " Where a sum of money is given by the 
will of a testator to be laid out in the purchase of lands, or of lands in a particular 
county, and after they are bought to be settled upon such and such persons, if a bill is 
brought here, the constant ordinary course is to direct a purchase, and the produce of 
the money to go as the land itself, till purchased. This comes very near the present 
case. ... It is carried too far, when it is said, no exchange can ever be made, for 
there is no time fixed for it, and therefore there may come a prebendary at Lmcoln, 
who may consent to the exchange." 



EQUITABLE CONVERSION. 247 

tiie intermediate income of the land ; ^ and, in such a case, the 
income of the money or land must, of course, be accumulated till 
the money is laid out, or the land purchased. But, in the absence 
of an express direction to the contrary, it is clear that the inter- 
mediate income will go in the manner indicated in the preceding 
paragraph. 

In the case of Pearson v. Lane,^ land was conveyed to trustees 
in trust to sell the same, and lay out the proceeds in other land, 
and settle the latter on the grantor for life, remainder to the first 
and other sons of the grantor and his then wife successively in tail, 
remainder to their daughters as tenants in common in tail, remain- 
der to the grantor in fee. Twenty-four years afterwards the 
grantor died, leaving two daughters, and thereupon, no sale of the 
land having been made, the daughters and their husbands levied 
fines of the land, and, twenty years later, the question arose 
whether the fines were valid, and had made the daughters equi- 
table owners of the land in fee simple absolute. And that was 
supposed to depend upon whether the daughters had an equitable 
freehold in the land when the fines were levied. If the land had 
been sold, and its proceeds reinvested in other land, as directed, 
the daughters would have become, on their father's death, equitable 
tenants in tail in possession of the land purchased, under their 
father's deed of trust, and equitable owners of the reversion in fee 
by descent from their father. Had they any estate in the land of 
which the fines were levied ? Clearly, the deed of trust gave them 
none, either at law or in equity. What, then, became of the equi- 
table fee in that land immediately on the execution of the deed of 
trust? It resulted to the grantor, though subject to be devested 
by a sale of the land, as directed, and, on the grantor's death, it 
descended to his daughters, though subject to the same condition 
subsequent. By virtue of this equitable fee, the daughters could 
have levied fines, but fines levied by them would not have de- 
stroyed nor affected the condition by which their equitable title 
was liable to be defeated, for, the title of the trustees being legal, 
the fines would have been inoperative and void as to them. There 
was, however, one way, and one way only, in which they could 
obtain a perfect legal and equitable title to the land, namely, by 
filing a bill against the trustees and compelling them to convey 

1 Short V, Wood, i P. Wms. 470; Pearson v. Lame, 17 Ves. loi ; Biggs v. Andrew^ 
5 Sim. 424. 
« 17 Ves. loi. 



248 HARVARD LAW REVIEW. 

the land to the plaintifTs, the ground for the bill being that, if the 
land were sold and other land purchased, the plaintiffs would be 
entitled to have the latter conveyed to them in tail, remainder to 
them in fee, and then they could, by levying fines, convert their 
estate tail into a fee simple absolute, and, therefore, as they could 
not levy fines effectively of the land held by the trustees, they 
were entitled to have the latter conveyed to them in fee simple 
without the levying of fines, their bill being a sufficient substitute 
for fines. 

Sir W. Grant, M. R., held, however, that the daughters and 
their husbands had acquired a perfect title to the land by the fines 
which they had levied, he being of opinion that the daughters were 
equitable tenants in tail of the land when the fines were levied, 
and hence that the fines had made them equitable tenants in fee 
simple ; and, though it does not appear that they had obtained any 
conveyance of the legal title, yet no objection was taken to the 
title on that ground, nor does the case give any information as to 
the trustees or their acts subsequent to the conveyance of the land 
to them. Upon what ground did Sir W. Grant hold that the 
daughters were equitable tenants in tail of the land when the fines 
were levied? Upon the ground, first, that, though the deed of 
trust gave them in terms no estate in the land to be sold, yet, as 
the trustees took only a naked legal title, and the equitable title 
must be somewhere, a court of equity would ascertain where it 
was by inquiring for whose benefit the trust existed, u e.^ who was 
the cestui que trust, and that here the grantee's daughters were the 
cestuis que trust, and consequently they took, under the trust deed, 
the same equitable estate that they would have taken in the land 
to be purchased, when purchased, namely, an equitable estate tail. 
To this, however, it may be answered that, though the daughters 
were cestuis que trust under the trust deed, yet they were to enjoy 
the land vested in the trustees only in the mode pointed out by the 
creator of the trust, namely, by its sale and the investment of the 
proceeds in other land, and that this was absolutely inconsistent 
with their having any interest in the land to be sold, except for 
so long as it should remain unsold. 

Sir W. Grant says : ^ " Where money is given to be laid out in 
land, which is to be conveyed to A, though there is no gift of the 
money to him, yet in equity it is his ; and he may elect not to 

I P. 104. 



EQUITABLE CONVERSION. 249 

have it laid out : so, on the other hand, where land is given upon 
a trust to sell, and to pay the produce to A, though no interest in 
the land is expressly given to him, in equity he is the owner; and 
the trustee must convey, as he shall direct." Undoubtedly this 
is true,^ but why? Because A, being made the absolute owner of 
the land in which the money is to be laid out, or of the proceeds 
of the land to be sold, the direction to lay the money out in land, 
or to purchase land, is inoperative and void. As A alone is inter- 
ested in the question whether the money shall be laid out in land, 
or whether the land shall be sold, so he alone has a voice in the 
decision of that question. It follows, therefore, that, while in 
terms the gift to A is only of the land in which the money is to be 
laid out, or of the proceeds of the land to be sold, the gift to him 
is, in legal effect, of the money to be laid out, or of the land to 
be sold, the direction to lay out the one, or to sell the other, going 
for nothing. Why, then, does the law thus wholly change the sub- 
ject of the gift, instead of simply giving effect to it according to its 
terms? Because the law cannot do the former for the reason just 
stated, and, therefore, it does the latter to prevent the purpose of 
the giver from being totally defeated. The law, therefore, changes 
the subject of the gift for the best of reasons, namely, ut res magis 
valeat qtiam pereat, 

C. C. LangdelL 
Cambridge, October, 1905. 

1 A gift of the proceeds of a sale of land is an absolute gift of the land itself 
In re Daveron, [1893] 3 Ch. 421, 424. 



2SO HARVARD LA IV REVIEW. 



THE CREATION OF THE RELATION OF 
CARRIER AND PASSENGER. 

AS in the case of other persons engaged in a public undertaking, 
so in the case of a carrier of passengers, responsibility begins 
upon the acceptance by the carrier, in some way or other, of the 
person who thus becomes a passenger. This may be an express 
acceptance by the present assent of the carrier or his servant, or 
it may be an acceptance by the carrier, in advance, of everyone 
who complies with the terms of a certain offer. The latter is the 
commoner method of accepting passengers. "A railroad com- 
pany," as Mr. Justice Knowlton put it,^ " holds itself out as ready 
to receive as passengers all persons who present themselves in a 
proper condition, and in a proper manner, and at a proper place, 
to be carried." 

Either by securing express acceptance of himself as a pas- 
senger, or by complying exactly with the terms of the carrier's 
offer, the passenger, to be such, must have come into a relation 
with the carrier based on the carrier's consent to receive him. 
Without such consent one cannot become a passenger, even though 
one has a legal right to be received. If, for instance, the carrier 
should violate his legal duty by refusal to receive a proper person 
as a passenger, the latter would have an action against the carrier, 
but the action could not be based upon the duty of a carrier to 
a passenger. The carrier's wrong consists not in violating the 
right of a passenger, but merely in violating the right to become 
a passenger, — a very different right. 

This right to become a passenger is not the only right of a non- 
passenger against a carrier. One who intends to become a pas- 
senger at a future time may have an immediate right against the 
carrier of access to his office or conveyance, in order to make 
inquiries, to buy tickets, or to wait a reasonable time until the 
carrier is ready to receive him as a passenger. This right is inci- 
dental to the right to become a passenger. We shall see later that 
the exercise of the right does not necessarily and immediately 
make the person so exercising it a passenger. 

t Webster v. Fitchburg R. R., i6i Mass. 398, 37 N. E. Rep. 165. 



CARRIER AND PASSENGER. 2$ I 

There are other non-passengers who have rights against the 
carrier, who do not themselves even intend to become passengers. 
Such are hackmen who come to the station to bring passengers, 
and relatives or friends who come to escort passengers to their 
vehicle or to meet them on arrival. Such rights as these, like the 
rights of the intending passenger, are incidental to the business of 
the carrier, and derive their existence from actual or contemplated 
passenger-rights. 

It is not always easy to distinguish between the real passenger- 
rights and the subordinate incidental rights, or to say in some 
cases whether a party has become a passenger or is still in the 
exercise of a preliminary incidental right But there is one im- 
portant consequence of the passenger-right having come into 
existence, that is, the obligation of the passenger to compensate 
the carrier. This obligation is the consequence, not the cause, of 
the existence of the relation; but as it is sometimes easy to see 
that no obligation to pay has arisen, the absence of such obligation 
determines the nature of the relation. For the carrier is entitled 
by the law to compensation only for exercising his business as 
carrier ; and all the incidental duties of which I have spoken must 
be rendered without compensation. 

With this short preliminary statement of the principles govern- 
ing our subject, let us examine certain classes of cases in which 
the existence of the relation has been brought in question. 

Payment of Fare. 

It must be evident that the purchase of a ticket does not of itself 
render the purchaser liable for the payment of fare at any particu- 
lar time. He may take the next train, or wait for five years; he 
may use the ticket himself, or give it away ; and it may never be 
used. The mere purchase of a ticket therefore does not make the 
purchaser a passenger; ^ and stress is laid on the purchase of a 
ticket, in several cases, merely because it is in the particular case 
evidence of a bona fide intention to become a passenger. 

If the ticket is surrendered at a gate or door through which the 
person must pass to take the carrier's vehicle, this, it is clear, makes 
the person a passenger ; since he then pays his fare, which he is 
only obliged to pay as a condition of being accepted as a pas- 
senger. The payment therefore proves such acceptance.* 

1 Vandcgrift v. West Jersey & S. R. R., 71 N. J. L., 60 Atl. Rep. 184. 
s Illinois Cent. R. R. v. Treat, 179 111. 576, 54 N. £. Rep. 39a 



252 HARVARD LAW REVIEW. 

On the other hand, the payment of fare is not necessary before 
a person becomes a passenger, but a passenger who takes a rail- 
road train expecting to pay a fare has already the relation of a pas- 
senger to the company, though a conductor has not yet appeared 
to collect a fare ; since such a person is liable to pay a fare upon 
demand, and is in fact making a tender of the fare at the moment 
of getting on board the vehicle. A delay of the conductor in 
collecting the fare is due simply to the convenience of the com- 
pany, which might, if it chose, collect the fare from the passenger 
before permitting him to get on board the vehicle. The moment 
of beginning passage is the same, therefore, whether the fare is 
collected in advance, or is paid during the progress of the journey.^ 

Waiting at Station for a Train. 

It must be obvious that the relation of carrier and passenger 
may arise before actual transportation has begun. Thus, if a 
person who intends to be carried is on board a vehicle which is 
ready to start he has become a passenger, though the vehicle has 
not yet started.*^ So one who is on a steamboat at a wharf, ready 
to start, is a passenger, though the boat has not yet started.^ 

One who is in the waiting-room of a station, waiting to take the 
carrier's car, has been held to be a passenger,^ but the question 
involved was merely the right of such person to safe premises, or 
to proper treatment by the carrier's servants, and this right would 
exist independently of the relation of carrier and passenger. It is 
better, therefore, to speak of the obligation which the carrier owes 
" to one intending to become a passenger in one of its trains, who 
would have a right to use the waiting-room for a reasonable time 
before the arrival of the expected train." ^ At any rate, if the 
intending passenger came to the waiting-room and remained there 
after the train had gone, he would clearly not be a passenger.' 

1 Mellquist v. The Wasco, 53 Fed. Rep. 546; Frink v, Shroyer, 18 111. 416; Ohio & 
M. R. R. V. Muhling, 30 HI. 9; Russ v. Steamboat War Eagle, 14 la. 363 (passenger 
on board boat at end of first half of a round trip, waiting for the boat to start back, is 
a passenger, though the return fare is not paid) ; Hurt v. Southern R. R., 40 Miss. 391 ; 
Houston & T. C. R. R. v. Washington (Tex. Civ. App.), 30 S. W. Rep. 719. 

3 Massiter v. Cooper, 4 Esp. 260. 

* Hrebrik v. Carr, 29 Fed. Rep. 298. 

* Gordon v. Grand St. & N. R. R., 40 Barb. (N. Y.) 546; Norfolk & W. R. R. r. 
Galliher, 89 Va. 639, 16 S. E. Rep. 935. 

* Devens, J., in Heinlein v, Boston & P. R. R., 147 Mass. 136, 16 N. £. Rop. 69S. 

* Heinlein v. Boston & P. R. R., supra. 



CARRIER AND PASSENGER. 253 

It is commonly said that one who is on the platform of a railroad 
company, waiting for a train which he intends to take there as 
soon as it arrives, is a passenger.^ Here, again, it may be doubtful 
whether he is strictly a passenger, or is not, rather, an intending 
passenger to whom the carrier owes the duty of providing a safe 
platform. The distinction is not usually an important one. It 
became so, however, in a peculiar case where a drover about to go 
in the car with cattle was walking past the engine to get on board 
his car when he was hit by a piece of wood negligently thrown 
from the engine. His drover's ticket exempted the carrier from 
liability. This exemption would become an agreement of the 
drover and binding upon him as soon as he used the ticket, or, in 
other words, became a passenger upon the terms of the agreement 
in the ticket The court held that the exemption was effectual 
because he had already become a passenger.' It might be argued 
that on the special facts of the case the drover was already bound 
by the terms of the ticket, because he had already come under an 
obligation to the carrier to take passage on the train, in order to 
take care of the cattle, which were already loaded. The case, 
however, was decided upon the general principle that a person 
upon a station platform about to take a train is a passenger. If 
under such circumstances the person in question, finding that he 
had forgotten some article which he desired to take along with 
him, had abandoned his intention to take that train, and had left 
the station, could it be argued that he was bound to pay a fare 
to the railroad company on account of the abandoned trip? It 
would seem not; and if not, upon principles already stated he 
should not be held strictly a passenger. 

An intending passenger who has bought a ticket, or is prepared 
to pay fare, and is passing over tracks of the company, under 
direction of its servants, or according to custom, toward the train 
which he is about to take, has been held to be a passenger.^ But 
in the absence of usage or of the directions of the carrier, even a 
person in a station would not become a passenger by crossing a 
track toward his train. Crossing railroad tracks is not ordinarily 
a safe or proper way to present oneself to a railroad as a pas- 

1 Central R. R. v. Perry, 58 Ga. 461 ; Caswell v. Boston & W. R. R., 98 Mass. 194 ; 
Carpenter v, Boston & A. R. R., 97 N. Y. 494. 

» Poacher v. New York C. R. R., 49 N. Y. 263. 

s AUender v. Chicago, R. I. & P. R. R., 37 la. 264; Warren v. Fitchburg R. R., 
8 AUen (Mass.) 227. 



254 HARVARD LAW REVIEW. 

senger ; and in the absence of express acceptance where the party 
relies on the general invitation of the carrier, it cannot be supposed 
that the carrier invites persons to take its trains in any other than 
a safe and proper way.^ 

One walking along the public street toward the station with the 
intention of taking the train is certainly not yet a passenger; * nor 
a fortiori is one who is proceeding across the tracks directly from 
the street to the train. In such a case the intending passenger 
must at least have been received on the premises of the company 
before proceeding upon the tracks if he is to be regarded as a 
passenger. One who, merely in order to reach in the quickest 
way the platform from which his train starts, crosses the carrier's 
tracks on his way from the sidewalk to the train, cannot be regarded 
as a passenger.^ 

Boarding a Moving Train. 

If a person gets on a moving train after it has started, he is 
"outside of any implied invitation" on the part of the carrier, and 
does not at once acquire the rights of a passenger.^ 

In the Massachusetts case just cited, it is held that even his 
reaching the platform of the car safely does not give him those 
rights. "If he had reached a place of safety and seated himself 
inside of the car, the bailment of his person to the defendant would 
have been accomplished, so that he would not have been prevented 
from asserting such rights because of his improper way of getting 
upon the train. But we think that he could not assert them until 
he had passed the danger which met him on the threshold, and had 
put himself in the proper place for the carriage of passengers." * 

But a person in such a position, while unable to take advantage 
of the general invitation of the carrier, may of course become a 
passenger by being accepted as such by the proper agent of the 
carrier. If while standing on the steps he had been accepted as a 
passenger by the conductor, he would become a passenger ; and 
the same result would follow if a brakeman attempted to help him 

^ Southern Ry. v. Smith, 86 Fed. Rep. 292 (he " did nothing to notify any of the 
officers or agents of the defendant company that he was even a prospective passenger "). 

s Southern Ry. v. Smith, supra; June v. Boston & A. R. R., 153 Mass. 79, 26 N. £. 
Rep. 238. 

* Chicago & E. I. R. R. v. Jennings, 190 III. 478, 60 N. £. Rep. 818 ; Webster v. Fitch* 
burg R. R., 161 Mass. 298, 37 N. £. Rep. 165. 

« Merrill v. Eastern R. R., 139 Mass. 238, i N. E. Rep. 548. 

* Holmes, J., in Merrill v. Eastern R. R , supra^ at p. 24a 



CARRIER AND PASSENGER. 255 

to the platform. In the Massachusetts case it appeared that a 
brakeman had seen him and told him " to get out of the way so 
that the [brakeman] could do his work." This fact however was 
not regarded as making him a passenger; nor in another case 
was the fact that the person was seen by the conductor on the 
platform.^ 

In other jurisdictions the courts are inclined to hold that a per- 
son becomes a passenger as soon as he reaches the platform in 
safety. This has been carried so far that if an intending passenger 
has wrongfully boarded a moving train, but has placed himself in 
a position of safety, and a servant of the carrier, intending to assist 
him, injures him, the person is regarded as having become a pas- 
senger.* And this has been held even where the carrier's servant 
instead of helping the person pushed him off; the person, having 
succeeded in getting aboard the train safely as a bona fide passenger, 
being treated as if he had done so before the train started.' 

If a person is injured while attempting to board a moving train, 
or to get upon a train in such a way that he does not at that time 
become a passenger, but he eventually gets on board and is 
accepted as passenger by the conductor, this acceptance does not 
relate back to make such person a passenger ab initio^ and there- 
fore make the carrier responsible as carrier for the injury.^ 

Boarding a Street Car or Omnibus. 

It was early held that when a man, intending to take passage in 
a vehicle which has stopped to receive him, puts his foot upon 
the step or his hand upon a hand-rail, he has been accepted as a 
passenger, and the responsibility of the carrier toward him as a 
passenger begins. The leading case is the English case of Brien 
V. Bennett.^ An omnibus had stopped for a passenger, and just 
as the passenger put his foot on the step the omnibus started, 
throwing the passenger to the ground ; the carrier was held liable. 
The case has been universally followed.^ 

1 Illinois C. R. R. v, O'Keefe, i68 111. 115, 48 N. E. Rep. 294. 
s Pennsylvania R. R. v. Reed, 60 Fed. Rep. 694. 
■ Sharrer v, Paxson, 171 Pa. 26, 33 Atl. Rep. 120. 

* Georgia Pac. Ry. v. Robinson, ^ Miss. 643, 10 So. Rep. 6a 
» 8 C. & P. 724. 

• Central Ry. v. Smith, 74 Md. 216, 21 Atl. Rep. 706; Gordon v. West End St. Ry., 
175 Mass. 181, 55 N. E. Rep. 990; Daveyr. Greenfield & T. F. St. Ry., 177 Mass. lod 
^ N. E. Rep. 172 ; Smith v. St. Paul City Ry., 32 Minn. 1, 18 N. W. Rep. 827 ; Steeg 



256 HARVARD LAW REVIEW. 

When the carrier of a street railway or omnibus company sees 
the signal of an intending passenger, and stops to receive him, it 
would seem that the person whose signal is thus acted on by the 
carrier has at that moment become a passenger, even before he 
reaches the conveyance; for the act of the carrier in stopping the 
conveyance is an acceptance of the person as a passenger, and 
that person, having already induced the carrier to act for his bene- 
fit, has, it would seem, become responsible for the payment of fare. 
On each side, therefore, the relation of carrier and passenger has 
been established. This is in accordance with the reasoning of the 
court in the leading case of Brien v, Bennett,^ where the carrier's 
omnibus had stopped at a signal from the plaintiff. Lord Abinger 
said, " I think that the stopping of the omnibus implies a consent 
to take the plaintiff as a passenger." 

In accordance with this reasoning it has been held in most cases 
that the relation of carrier and passenger was established the mo- 
ment the vehicle began to slacken its speed in response to the 
passenger's signal.^ Where the invitation is express, there is no 
doubt of this. So where a train which was going slowly was 
flagged by an intending passenger, and the conductor told him 
to jump on, he became a passenger at once.^ 

In Connecticut and Massachusetts, however, it is held that 
though the car stops in response to a signal, the person for whom 
it stops does not become a passenger until he reaches the vehicle.^ 
In the Massachusetts case the judge at the trial charged that where 
the car had stopped to receive the intending passenger, " thereby 
making an offer to be received and an acceptance of that offer," 

V, St. Paul City Ry., 50 Minn. 149, 52 N. W. Rep. 393; Ganiard v. Rochester, C. & B. 
R. R., 121 N. Y. 661, 24 N. E. Rep. 1092 ; affirming s. c. 50 Hun (N. Y.) 22, 2 N. Y. 
Supp. 470. And so of a person who steps upon the gang-plank of a steamboat : 
Northwestern U. P. Co. v, Clough, 22 Wall. (U. S.) 528; or upon the step of a steam 
railroad car : Texas & P. Ry. v, Edmond (Tex. Civ. App.), 29 S. W. Rep. 518. 

^ Brien v, Bennett, supra, 

s Finkeldey v. Omnibus Cable Co., 114 CaL28, 45 Pac Rep. 996 ("the slackening 
of the speed in response to his signal was an invitation from the driver for him to 
board the car") ; White v. Atlanta St R. R., 92 Ga. 494, 17 S. E. Rep. 672 ; Chicago 
St. Ry. V, Williams, 140 111. 275, 29 N. £. Rep. 672 ("it was a fair question for the 
jury whether, under all the circumstances, the plaintiff was not invited to get on the 
car. If he was so invited, he was a passenger ") ; Butler v. Glen Falls, S. H. & F. E. 
S. R. R., 121 N. Y. 112, 24 N. E. Rep. 187 ; Lewis v, Houston Elec. Co. (Tex. Civ. 
App.), 88 S. W. Rep. 489. 

* Kansas & G. S. L. R. R. v, Dorough, 72 Tex. 108, 10 S. W. Rep. 711. 

^ Donovan v. Hartford St. Ry., 65 Conn, aoi, 32 Atl. Rep. 350; Duchemin r. Bot- 
ton E. Ry., 186 Mass. 353, 71 N. £. Rep. 78a 



CARRIER AND PASSENGER. 257 

the intending passenger is entitled to the rights and protection of 
a passenger as he approaches the car to get on it, " at least so far 
as any defect in that car is concerned." The passenger in that 
case, while approaching the car, was injured by a sign falling 
from the car upon him. The Supreme Judicial Court of Massa- 
chusetts held the charge erroneous. In the course of his opinion 
Mr. Justice Barker said : 

" A person in such a situation is not in fact a passenger. He has not 
entered upon the premises of the carrier, as has a person who has gone 
upon the grounds of a steam railroad for the purpose of taking a train. He 
is upon a public highway where he has a clear right to be independently 
of his intention to become a passenger. He has as yet done nothing which 
enables the carrier to demand of him a fare, or in any way to control his 
actions. He is at liberty to advance or recede. He may change his mind 
and not become a passenger. Certainly the carrier owes him no other duty 
to keep the pavement smooth or the street clear of obstructions to his prog- 
ress than it owes to all other travelers on the highway. It is under no 
obligation to see that he is not assaulted, or run into by vehicles or travel- 
ers, or not insulted or otherwise mistreated by other persons present. Nor 
do we think that as to such person, who has not yet reached the car, there 
is any other duty as to the car itself than that which the carrier owes to all 
persons lawfully upon the street. There is no sound distinction as to the 
diligence due from the carrier between the case of a person who has just 
dismounted from a street car and that of one who is about to take the car 
but has not yet reached it. . . . We are unwilling to go farther than the 
doctrine . . . that when there has been an invitation on the part of the 
carrier by stopping for the reception of a passenger any person actually 
taking hold of the car and beginning to enter it is a passenger." 

The reasoning of the court has been given at length, because 
the case is of considerable practical importance in itself, and be- 
cause the authority of the court, even when opposed to the current 
of decisions, is great. The arguments used should therefore be 
analyzed with care. 

First, there is said to be no distinction between a passenger who 
has left a car and one who is about to take it. But the analogy of 
the carrier of goods makes this statement doubtful. When a carrier 
of goods accepts goods for immediate carriage, he at once becomes 
responsible as carrier, though the actual transportation may not 
begin until later ; while at the end of the route he ceases to be 
liable as carrier and becomes responsible only as warehouseman 
at once on the ceasing of transportation, according to the view held 

17 



258 HARVARD LAW REVIEW. 

in Massachusetts, or at least after the lapse of a " reasonable " 
time, as certain jurisdictions hold. The same reason which leads 
to this distinction in the case of the carriage of goods would sup- 
port it in the case of the carrier of passengers. 

Second, it is doubtless true that the carrier would not be 
responsible for protecting the intending passenger from assault 
or negligent injury by persons on the street; but this is quite 
consistent with his having already become a passenger. The duty 
of the carrier to protect a passenger against third persons is not 
absolute, but is limited by the power of the carrier to protect by 
the use of reasonable effort. The carrier, not being in control of 
the street traffic, cannot reasonably be called upon to furnish pro- 
tection against it. He would not be liable for an assault or negli- 
gent injury by a person on the street to a passenger actually on 
the car, under the circumstances supposed. 

Third, the statement that the carrier is not entitled to compensa- 
tion at once upon slackening his speed in response to a signal 
is very questionable. The carrier has been called upon to do 
something in the line of his business for a particular individual, 
a thing which only a passenger has a right to demand. It is 
admitted that the person would be a passenger the moment his 
foot touched the step, and therefore that the carrier would have 
a right to demand payment of fare ; but the carrier has performed 
all the service for which this charge is made the moment he stops 
the car. It may be granted that it would be practically difficult to 
collect fare if the person in the street changed his mind and turned 
away before he reached the car ; so it would be if he turned away 
after placing his foot on the step: but that is not saying that the 
carrier must stop his car gratuitously. If the Massachusetts opin- 
ion is correct, there would seem to be no law to prevent a street 
car being compelled to stop at every street crossing on its route 
without being entitled to compensation. There is really no proper 
distinction between the person who has not yet put his foot on 
the step and the person who has just done so; the consensual 
relation dates from the moment of mutual consent, that is, the 
moment of response to the signal. 

It is clear, of course, that though the vehicle slackens its speed, 
if this is not done in response to a signal from the intending 
passenger, but independently, the intending passenger does not 
become entitled to the rights of a passenger. His bona fide 
belief that his signal has been seen and responded to is imma- 



CARRIER AND PASSENGER. 259 

terial ; he must actually secure the consent of the carrier to the 
relation.^ 

Riding in a Place not Intended for Passengers. 

When a person desiring to be transported enters a car or other 
part of a railroad train not intended for passengers, he does not 
thereby accept the carrier's invitation ; and if there is no express 
acceptance of him as a passenger he is not entitled to be so 
treated. In a Texas case^ it appeared that an intending passenger, 
having money to pay his fare, came late to the station, and was 
just able to get on board the front platform of the first car as the 
train started. This proved to be the front platform of a baggage- 
car. The fireman, discovering him, compelled him to jump off by 
turning hot water from a hose on him; and in jumping he was 
injured. The Court of Civil Appeals held that he could recover 
as a passenger. " While," they said, " the place one may be occupy- 
ing upon the train at the time of his injury may be important in 
determining whether or not he intended to pay his fare, it does 
not conclusively fix his status, either as a passenger or a tres- 
passer. It may be conceded that a person found in the position 
occupied by Eaton Williams at the time he was injured is subject 
to the suspicion of being a trespasser ; but if such person, having 
the means and intending to pay his fare, can, as Eaton Williams in 
this case did, give a reasonable excuse for why he was not in a 
passenger coach, he will, in Jaw, be a passenger, and entitled to 
protection against the wrongful acts of the railroad company and 
its employes. Neither the carrier nor its employes can assume 
that a person on any car of a passenger train is a trespasser, and, 
if they treat him as a trespasser merely because he is not in one of 
the cars provided for, and usually occupied by, a passenger, and 
injury results therefrom, and the facts show that he is a passenger, 
the railroad company will be liable." 

1 Jones V. Boston & M. R. R, 163 Mass. 245, 39 N. E. Rep. 1019; Schepers v> 
Union Depot R. R., 126 Mo. 665,29 S. W. Rep. 712; Schaefer v. St. Louis St. Ry., 128 
Mo. 64, 30 S. W. Rep. 331 (" the offer must be made to become a passenger on one 
part, and an acceptance on part of the company of the passenger on the other, before 
the relation of carrier and passenger can be said to exist ") ; Pitcher v. People's St. 
Ry., 154 Pa. 560, 26 Atl. Rep. 559, 174 Pa. 402, 34 Atl. Rep. 567 ("the company was 
entitled to some kind of notice of his intent to assume the relation of passenger before 
being charged with the duty of taking care of him as a passenger"). 

> MIssottri K. & T. Ry. v, Williams (Tex. Civ. App.), 40 S. W. Rep. 35a 



26o HARVARD LAW REVIEW. 

This decision was however reversed on appeal to the Supreme 
Court. One may become a passenger, the court said, by either an 
express or an implied contract. There was no express contract in 
this case ; and " in order to raise such an implied contract, the 
party desiring to be carried by the railroad company must take 
passage on that part of the train provided by it for carrying 
passengers." ^ 

A case almost identical in its facts was decided in South Carolina 
between the first decision and the appeal in the Texas case ; and 
largely on the authority of the Texas Court of Civil Appeals the 
plaintiff was held to be a passenger.^ Chief Justice Mclver dis- 
sented, taking the same ground on which the Supreme Court 
placed itself in the Texas case. If, he said, " the plaintiff, with 
his ticket in his pocket, had got on the pilot, or the engine itself, 
or upon the tender, or upon the express car, it certainly could 
not, with any propriety, be said that he had thereby established 
the relationship of passenger between himself and the company. 
Why? Simply because such places are not the proper places for 
passengers to be received or transported ; and it seems to me that 
the same may be said of a baggage car. If, then, the relationship 
of passenger and carrier had not been established between plaintiff 
and defendant at the time of the accident, it is clear that the 
defendant company owed no duty to the plaintiff except such as 
it might owe him as a trespasser." 

The reasoning of the dissenting opinion is hard to resist The 
case is not like that of taking a wrong train by mistake ; for there 
the person gets into a car intended for passengers, while here, as 
the Chief Justice pointed out, he knew that a baggage car was not 
prepared for the reception of passengers. The haste with which 
the plaintiff took the train has prevented him from so taking it as 
to make himself a passenger by bringing himself within the terms 
of the company's invitation. Yet it must be clear that he can 
be treated in no worse way than an innocent trespasser; and if 
wantonly injured by a servant of the company in the course of his 
employment, the carrier should be liable. It was urged in the 
dissenting opinion in the South Carolina case that the servant was 

1 Missouri K. & T. Ry. v. Williams, 91 Tex. 255, 42 S. W. Rep. 855. It is hard to 
see how the defendant could escape liability under the circumstances even by proving 
that the plaintiff was not a passenger; since the injury was wanton, and was ap- 
parently inflicted in the carrier's service. 

2 Martin v. Southern Ry., 51 S. C. 150, 28 S. £. Rep. 505. 



CARRIER AND PASSENGER. 261 

not acting in the course of the employment ; but this view would 
seem to be mistaken. 

The same facts came up in Illinois, and it was held that the per- 
son did not become a passenger by getting safely upon the plat- 
form.^ !' A passenger must put himself in the care of the railroad 
company, and there must be something from which it may fairly 
be implied that the company had accepted him as a passenger." 

The distinction is to be noted between persons who having once 
become passengers then go without permission of the company into 
some place not provided for passengers, and persons who, intending 
to become passengers, go in the first instance to such a place. 
While the latter do not technically become passengers at all, since 
they never place themselves within the terms of the carrier's offer 
to receive them,' persons who have already become passengers 
do not forfeit that position by going into some car or some part of 
a car in which passengers are not allowed to ride. Such conduct 
may be negligent, and if the negligence contributes to an injury 
it may therefore bar recovery for the injury; but the recovery 
cannot be denied on the ground that the injured person was not a 
passenger.^ 

It often happens, however, that a person is received by the 
carrier's servant into a vehicle not prepared for passengers, and is 
permitted to ride there. Such a reception will of course make the 
person a passenger provided the reception is within the authority 
of the servant ; either because of express permission given by the 
carrier, or because the reception is within the apparent authority 
of the servant. 

A case of the first kind occurs when a railroad is accustomed to 
carry passengers in freight cars. Where such a custom exists, one 
received on a freight train is to be regarded as a passenger quite 
as much as one who rides on an ordinary passenger train.^ 

1 Illinois C. R. R. v, O'Keefe, 168 111. 115, 48 N. E. Rep. 294. See Farley z/. 
Cincinnati, etc., R. R., 108 Fed. Rep. 14. 

* Bricker v. Campbell, 132 Pa. 1, 18 Atl. Rep. 983. 

* Kentucky C. R. R. v. Thomas, 79 Ky. 160 (express car) ; Bard v. Pennsylvania 
Traction Co., 176 Pa. 97, 34 Atl. Rep. 953 (bumper of street car) ; Little Rock & 
F. S. Ry. V. Miles, 40 Ark. 298 (top of freight car) ; Merrill v. Eastern R. R., 139 
Mass. 238, I N. E. Rep. 548 (step of steam-car) ; New Orleans & N. E. R. R. v, 
Thomas, 60 Fed. Rep. 379 (top of cattle car). 

« Hazard v, Chicago, 6. & Q. R. R., i Biss. 503; Reber v. Bond. 38 Fed. Rep. 822 ; 
Ohio & M. R. R. V, Mahling, 30 HI. 9; Ohio & M. Ry. v. Dickerson, 59 Ind. 317; 
Missouri P. Ry. v, Holcomb, 44 Kan. 332, 24 Pac. Rep. 467 ; Whitehead v, St. Louis, 
1. M. & S. Ry., 99 Mo. 263, II S. W. Rep. 751 ; Perkins v. Chicago, S. L. & N. O. R. R., 



262 HARVARD LAW REVIEIV. 

A case of the second kind occurs when passengers are not 
uncommonly so carried on freight trains in that part of the coun- 
try, and one is permitted to ride on such a train by the conduc- 
tor. When for any reason the conductor has apparent authority 
to receive a passenger, and does so, the relation of carrier and 
passenger is established.^ 

If a passenger is received by a servant of the carrier in a vehicle 
in which he knows that he has no right to ride, and that the con- 
ductor has no authority to permit him to ride, he does not become 
a passenger whether he pays fare or not Thus where the conduc- 
tor informs him that passengers are forbidden to ride on a freight 
train, but he persuades the conductor to let him ride nevertheless, 
he is not a passenger.^ And on the same principle one is not a 
passenger who by permission of the carrier's servant or otherwise 
rides on a locomotive,' a hand car,^ a flat car,* or a construction 
train.^ In one case it appeared that the passenger was informed 
by a servant of the carrier that he could not, under the carrier's 
rules, attach his own freight car to a passenger train and ride in it, 
as he desired to do; but the servant afterwards permitted it 
He was held to be a passenger.^ If the case can be supported, 
it must be on the ground that under the circumstances of the case 
he had reason to sup ose that the permission of the carrier had 
been obtained. 



60 Miss. 726 ; Morch v. Concord R. R., 29 N. H. 9 ; Edgerton v. New York & H. R. R., 
39 N. Y. 227 ; I. & G. N. Ry. v. Irvine, 64 Tex. 529. So in a similar case of one riding 
on an engine : Lake Shore & M. S. R. R. v. Brown, 123 III. 162, 14 N. £. Rep. 197 ; or 
on a gravel train : Lawrenceburgh & U. M. R. R. v, Montgomery, 7 Ind. 474. 

^ Dunn V. Grand Trunk Ry., 58 Me. 187 ; Ohio V. Ry. v. Watson, 93 Ky. 654, 3i 
S. W. Rep. 244; Lucas v. Milwaukee & S. P. Ry., 33 Wis. 41 ; Washburn v, Nashville 
& C. R. R., 3 Head (Tenn.) 638; Everett v, Oregon, S. L. & U. N. Ry., 9 Utah 340, 
34 Pac. Rep. 289. 

* Stalcup V. Louisville, N. A. & C. Ry., 16 Ind. App. 584, 45 N. E. Rep. 802; 
Powers V. Boston & M. R. R., 153 Mass. 188, 26 N. £. Rep. 446; Eaton v. Delaware, 
L. & W. R. R., 57 N. Y. 382; Louisville & N. R. R. v. Hailcy, 94 Tenn. 383, 29 S. W. 
Rep. 367 ; Houston & T. C. R. R. v, Moore, 49 Tex. 31 ; Gulf, C. & S. F. Ry. v. 
Campbell, 76 Tex. 174, 13 S. W. Rep. 19. 

* Files V, Boston & A. R. R., 149 Mass. 204, 21 N. E. Rep. 311 ; Stringer v. Mis- 
souri Pac. Ry., 96 Mo. 299 ; Rucker v, Missouri Pac. R. R., 61 Tex. 499. 

^ Hoar V, Maine Central R. R., 70 Me. 65. 

* Higgtns V, Cherokee R. R., 73 Ga. 149 (simbU) ; Snyder v, Natches R. R. & T. 
R. R., 42 La. Ann. 302, 7 So. Rep. 582. 

* McCanley v, Tennessee, C. I. & R. R. Co ,93 Ala. 356, 9 So. 61 1 ; Graham n, 
Toronto, G. & B. Ry., 23 U. C. C. P. 514. 

T Lackawanna & B. R. R. v. Chenowith, 52 Pa. 382. 



CARRIER AND PASSENGER. 263 

Stealing a Ride. 

One who steals a ride upon a vehicle of the carrier, that is, con- 
ceals himself, intending to evade fare, is not to be regarded as a 
passenger ; ^ and the same thing is true where a person gets on 
board the carrier's vehicle, refuses either to pay fare or to leave 
the vehicle, and succeeds in staying on the vehicle by force. In a 
case of this sort a person entered a stagecoach with a revolver 
and compelled the driver to allow him to ride without payment of 
fare. The coach broke down, and he was injured and sued for 
damages ; but it was held that he was not a passenger and could 
not recover damages.' 

So where a person is riding on a train, having used or intended 
to use a ticket which he knows he has no right to use, and conceal- 
ing or intending to conceal that fact from the conductor, he is not 
to be regarded as a passenger, even if the conductor permits him 
to ride.' The consent of the conductor to accept the ticket is not 
material if the consent was obtained by fraud ; though probably if 
knowing the facts the conductor allowed the substitution, the per- 
son so allowed to ride would be a passenger ; ^ and clearly, if the 
carrier habitually permitted such substitution, in spite of the exact 
terms of the ticket, the person using it in accordance with the 
custom would be a passenger.^ 

A child traveling with an older person who refuses to pay his 
fare is not entitled to be regarded as a passenger.® 

This doctrine seems unassailable, though the English Court of 
Queen's Bench refused to say that the fraud of the older person 
would prevent the child becoming a passenger.^ And where the 
older person bona fide fails to pay for the child, though under 



1 SUte V. Baltimore ft O. R. R., 24 Md. 84 ; Huehlhausen v. St. Louis R. R., 91 
Mo. 332, 2 S. W. Rep. 315; Chicago B. & Q. R. R. v, Mehlsack, 131 111. 61, 22 N. E. 
Rep. 812; Planx v. Boston & A. R. R., 157 Mass. 377, 32 N. £. Rep. 356; Barry v. 
Union Ry. (N. Y. App. Div.), 94 N. Y. Supp. 449. 

* Higley v, Gilmer, 3 Mont. 90. 

' Way V, Chicago, R. I. & P. Ry., 64 la. 48 (non-transferable mileage-book is- 
sued to another) ; Union Pac. Ry. v. Nichols, 8 Kan. 505 (fraudulent impersonation 
of express messenger) ; Toledo W. & W. R. R. v, Beggs, 85 111. 80 (non-transfera- 
ble free pass issued to another). 

* Way V, Chicago, R. I. & P. Ky., tupra. 

* Great Northern Ry. v. Harrison, 10 Exch. Rep. 376. 

* Beckwith v. Cheshire R. R., 143 Mass. 68, 8 N. E. Rep. 875. 

J Blackburn, J., in Austin v. Great Western Ry., L. R. 2 Q. B. 442, 446^ 



264 HARVARD LAW REVIEW. 

the rules of the company a fare is due from a child of that age, 
the child has been held a passenger.^ 

It sometimes happens that a person enters a carrier's vehicle 
prepared to pay fare if it is demanded, but hoping to escape the 
notice of the conductor and so avoid paying fare. It is hard to 
see how this form of fraud differs from that of a person riding on 
a non-transferable ticket issued to another; and the better view 
would seem to be that such a person is not a passenger until by 
paying his fare he is received as such by express consent of the 
conductor. Before being so expressly received, he can make him- 
self out a passenger only by bringing himself within the terms of 
the invitation ; and no invitation is extended to persons to enter 
the vehicle and try to " beat " the company. In a New York case, 
however, this view was not taken. It appeared in that case that the 
plaintiff had paid her fare, and taken passage on a ferryboat across 
a river, but on arriving at the other side, instead of leaving the boat, 
had crossed back again, without the payment of an additional fare. 
It was assumed that the fare paid on entering the boat covered 
only a single passage. It was held that since she did not attempt 
to conceal herself on the boat she was a passenger on the return 
trip. The court said : 

'' She remained on the boat; did not go ashore, so as to pass through 
the gate at the landing. The employes of the company saw her there, 
and it was their business to demand her fare, if they intended to charge 
her. Their doing so would not render her liable to be held guilty of neg- 
ligence, or of being carried gratuitously, so as not to render the company 
liable for damages arising through negligence on their part." ' 

However that may be, it is clear that if the traveler in such a 
case takes any step to conceal himself from the conductor he will 
not become a passenger. In one case of this sort it appeared that 
two persons were shipping horses over a railroad, and that by the 
laws of the road, as they knew, only one person was entitled to be 
carried free with the horses. A drover's ticket was issued to one 
of them. The other also entered the stock car with the horses, 
having no ticket, but afterwards asserted that he was ready to pay 
his fare upon demand. The conductor would not ordinarily come 
to a stock car to collect fares from passengers. The court held, 
and it would seem rightly, that the person riding without a ticket 

1 Austin v. Great Western Ry., L. R. 2 Q. B. 442. 

* Barnard, J., in Doran v. East River Ferry Co., 3 Laos. (N. Y.) 105. 



CARRIER AND PASSENGER. 265 

was not a passenger.^ The general question whether a person rid- 
ing without a ticket but expressing his readiness to pay fare if 
called upon is a passenger or not is a question of fact.^ 

Guest of a Servant of the Carrier. 

One who is riding in the carrier's vehicle, not as ordinary pas- 
sengers ride, but upon invitation of the carrier's servant, without 
paying fare, is not a passenger ; his relation is with the servant, not 
with the carrier.' 

Thus, where a yardmaster out of hours took an engine and car 
without permission of the defendant company, and invited persons 
to ride free in the car to a meeting, over a portion of the road not 
used for passenger trains, he was held not to have even apparent 
authority to act for the company, and the persons so riding were 
not passengers.^ And where a party of children were invited by a 
servant of the carrier to ride on a train which was being shifted 
through the yard, they were not passengers.^ 

In a few cases, however, it has been held that children riding on 
a vehicle by invitation of a servant of the company are entitled to 
be regarded as passengers. Thus, where the driver of a street car 
invited children to ride on the front platform, they were held to be 
passengers ; ® and where a conductor invited a boy to ride in a 
freight train (on which passengers were sometimes carried) the 
boy was held to be a passenger.^ But these cases can hardly be 
supported on this point The children concerned were clearly 

1 Gardner v. New Haven ft N. Co., 51 Conn. 143. 

* Ramm v, Minneapolis & S. L. R. R., 94 la. 296,62 N. W. 751 (passenger on freight 
train, intending to pay fare, climbs on flat car because platform of caboose is crowded). 

* Waterbury v. New York, C. & H. R. R. R., 17 Fed. Rep. 671 (riding on engine by 
consent of engineer) ; Atchison, T. & S. F. R. R. v. Headland, 18 Col. 477, 33 Pac. 
Rep. 185 (conductor induced to let plaintiff ride free on freight train) ; Toledo, W. & 
W. Ry. V, Brooks, 81 111. 245 (conductor induced to let plaintiff ride free on passenger 
train) ; Chicago & A. R. R. v, Michie, 83 111. 427 (riding on engine by consent of en- 
gineer) ; McVeety v, St. Paul, M. & M. Ry., 45 Minn. 268, 47 N. W. Rep. 809 (riding 
free on freight train) ; Woolsey v. Chicago, B. & Q. R. R., 39 Neb. 798, 58 N. W. Rep. 
444 (riding on engine by consent of fireman, to shovel coal) ; Robertson v. New York 
& £. R. R., 22 Barb. (N. Y.) 91 (riding on engine by consent of engineer). 

« Chicago, S. P. M. & O. Ry. v. Bryant, 65 Fed. Rep. 969. 

* Reary v, Louisville, N. O. & T. Ry., 40 La. Ann. 32, 3 So. Rep. 390. 

* Wilton V. Middlesex R. R., 107 Mass. 108 ; Muehlhausen v. St. Louis R. R., 91 
Mo. 332, 2 S. W. Rep. 315; Buck v. Power Co., 108 Mo. 185, 18 S. W. Rep. 1090. 

T St Joseph & W. R. R. v. Wheeler, 35 Kan. 185, 10 Pac. Rep. 461 ; Sherman v. 
Hannibal & S. J. R. R., 72 Mo. 62 {senMe) ; Whitehead v. St. Louis, I. M. & S. Ky.. 
99 Mo. 26j» II S. W. Rep. 751. 



266 HARVARD LAW REVIEW. 

guests of the servant, not of the carrier. However far the apparent 
authority of a conductor may be held to extend, it cannot cover 
an invitation to ride free ; free carriage is not the carrier's business. 

If one riding free by invitation of a servant is not a passenger, 
a fortiori one who by misrepresentation induces the servant to let 
him ride free is not a passenger ; ^ and still more clearly one who 
bribes the servant by a small fee to let him ride without paying the 
regular fare is not a passenger.' 

It will be noticed that the cases follow closely the principle laid 
down at the beginning of this article ; and that to prove himself a 
passenger one must prove either actual acceptance as such by a 
servant having authority, or else an exact compliance with the 
terms of an invitation extended by the carrier to the public 

Joseph H. BeaU, Jr. 
Cambbidgb, Mass. 

1 Condran v, Chicago, M. & S. P. Ry., 67 Fed. Rep. 522. 

« McNamara v. Great Northern Ry., 61 Minn. 296, 63 N. W. Rep. 726; Janny v. 
Great Northern Ry., 63 Minn. 380, 65 N. W. Rep. 450; Brevig v. Chicago, S. P. M. & 
O. Ry., 64 Minn. 168, 66 N. W. Rep. 401. 



CONVEYANCE OF LANDS BY DISSEISEE. 267 



THE CONVEYANCE OF LANDS BY ONE 
WHOSE LANDS ARE IN THE ADVERSE 
POSSESSION OF ANOTHER. 

WHERE a person, whose land is in the adverse possession of 
one claiming a freehold, attempts to convey the land without 
first terminating the adverse holding, there is much diversity of 
authority as to the result. A statement of the various rules and 
an historical review of the reasons for them is here attempted. 

English Law Prior to the Pretended Title Act of 1^40. 

The basic idea of the old system of land laws was seisin,^ at least 
after the word seisin ceased to cover all kinds of possession,' and 
became only the possession of one who, by right or by wrong, had 
a freehold estate in the land. We must, therefore, at the outset 
get a clear idea of seisin and also of disseisin and the other forms 
of adverse possession known to the old law. 

Seisin was a feudal word. He who had seisin by virtue thereof 
performed the feudal duties and enjoyed the rights of tenure that 
went with estates thought worthy to be held by a freeman, 1. e., 
those that went with estates of freehold.' " The man who is seised 
is the man who is sitting on land " ; ^ he is the man who, in the 
eyes of the feudal law, was the representative of the land for the 
time being, and as such owed fealty and performed homage. Lord 
Mansfield defines seisin, substantially, as that which was handed 
over by the ceremony of livery of seisin, which was the ceremony 
of feudal investiture ; ^ but that definition is not helpful except to 
show that, because livery of seisin was necessary only where free- 
hold estates were created or transferred, seisin is a word used 
properly only where freehold estates are involved. A much better 

^ " In the history of our law there is no idea more cardinal than that of seisin." 
PoUock and Maitland, Hist, of Eng. Law ii. 29. 

* That early in the law seisin meant only possession, see PoUock and Maitland ii. 
31 ff. ; Williams, Real Property, 17th ed., 35. 

* Day V. Solomon, 40 Ga. 32, 33-4. ^ Pollock and Maitland ii. 29. 

* " Seisin is a technical term to denote the completion of that investiture by wbich 
the tenant was admitted into the tenure, and without which no freehold could be con- 
stituted or pass." Taylor v. Horde, i Burr. 60, 107. 



268 HARVARD LAW REVIEW. 

definition is the following : '' It is only a possession, coupled with 
an actual claim of a freehold, or possession under such circum- 
stances that the law presumes such a claim, which amounts to a 
seisin. . . . Seisin, then, may be defined to be possession of land 
under a claim, either express or implied by law, of an estate 
amounting at least to a freehold." ^ So, too, the possession itself 
may be actual or implied by law. Where the possession is actual 
we have seisin in deed or in fact: where it is implied by law, we 
have a right of immediate possession of land treated as possession, 
so as to give seisin in law. Seisin in law was thus a fictitious or 
constructive seisin which the law recognized in an heir or devisee 
the very moment the ancestor or testator died, or in the remainder 
man or reversioner on the death of the life tenant in possession.' 
While seisin in law was good for some purposes, it was so slight a 
thing that when the heir, for instance, entered and thereby obtained 
seisin in fact, the latter seisin forthwith merged and put an end to 
the seisin in law, i, ^., the right of immediate possession of the 
freehold was swallowed up in the actual rightful possession. The 
fundamental idea about seisin was that while there were two kinds, 
there could be at a given moment for a given piece of property 
only one seisin,^ and only one kind. 

Disseisin was the wrongful taking away from the real owner of 
his actual seisin. " Disseisin was formerly a notorious act, when 
the disseisor put himself in the place of the disseisee as tenant of 
the freehold and performed the acts of the freeholder and appeared 
in that character in the lords' court ; " ^ or, as Lord Mansfield put 
it : " Disseisin, therefore, must mean some way or other turning 
the tenant out of his tenure and usurping his place and feudal rela- 
tion."^ How this was accomplished originally, unless the lord 
conspired with the disseisor, we do not know.® It is sufficient for 

1 Towle V, Ayer, 8 N. H. 57, 58-9. 

^ In Bracton's time there could be a vacant seisin. The fiction of seisin in law 
came later. Pollock and Maitland ii. 60. 

* I Washn Real Property, 6th ed., 54, § 95. 

* Lord EUenborough in William v. Thomas, 12 East 141, 155. See 4 Kent Com. 
482. 

^ Taylor v. Horde, suprat at p. 107. 

8 «« From what we know of the feudal law it does not appear how a disseisin could 
be effected without the consent or connivance of the lord ; yet we find the relationship 
of lord and tenant remained after the disseisin. Thus, after the disseisin the loid 
might release the rent and services to the disseisee ; might avow upon him ; and if he 
died, his heir within age, the lord was entitled to the wardship of the heir." Hargrave 
icnd Butler's note to Litt. f 448. 



CONVEYANCE OF LANDS BY DISSEISEE. 269 

our purpose that disseisin was early possible, and that every 
wrongful taking of seisin from the real owner was not necessarily 
a disseisin. That only was disseisin, where some one entered upon 
and ousted one who had taken actual possession under claim of 
freehold.^ Certainly this was true of actual disseisin, though there 
was a disseisin by election, where persons, to avail themselves of 
the remedy by assize, frequently were allowed to suppose or admit 
themselves to be disseised when they were not* Whatever may 
be true of the law of to-day, there was in the early common law a 
clear distinction between disseisin and other forms of adverse 
possession ; for unless actual seisin was interfered with, or could be 
regarded as interfered with for the purposes of the action, there 
was no disseisin, though there might perhaps be an abatement or 
some other form of adverse possession. 

From disseisin we pass to the other forms of adverse possession. 
Putting an end to seisin in law by wrongfully taking actual seisin 
constituted the kinds of adverse possession known as abatement 
and intrusion, while there were also other kinds of adverse pos- 
session known as discontinuance and deforcement. 

A stranger's unlawful entry under claim of freehold and re- 
tention of possession of land which had descended to an heir or 
passed to a devisee who had not yet entered was known as abate- 
ment He did not disseise the heir or the devisee, because they 
did not have actual seisin, but he entered upon the vacant posses- 
sion and abated, i, ^., overthrew, the freehold of the heir or 
devisee,^ who then had a right of entry as well as of action.^ 

Intrusion was of two kinds : the first was the same as abatement, 
except that it concerned the remainder man or reversioner after 

1 3 Bl. Com. 169; Co. litt 153 b. ; Litt. § 279 ; 4 Kent Com. 482. 

* Carioosly enough, Lord Mansfield extended the meaning of disseisin by election 
to cover the case of an owner refusing to consider himself disseised, where, by the 
early law, he actually was disseised. " In Taylor v. Horde, i Burrow 60, the princi- 
ples of the common law were ably shown by Mr. Knowler to be, that a wrongful pos- 
session by a stranger and feoffment by him passed to the feoffee an actual immediate 
estate of freehold, with all its rights and incidents, defeasible only by the lawful owner, 
whose right of entry, however, was taken away by a descent cast on the heir of the 
feoffee. Lord Mansfield, however, held that mere acts of intrusion or trespass, 
followed by a feoffment, could not thus turn the lawful owner into a disseisee, unless 
he should elect to consider himself disseised, and this doctrine has been since gener- 
ally adopted in the English cases (Jerrett v. Weare, 3 Price 575 ; Goodright v, For- 
rester, I Taunt. 578 ; Doe v, Lynes, 3 B. & C. 388), notwithstanding the earnest stand 
made against it by Mr. Preston and Mr. Butler. Preston on Abstracts 279 ; Butler's 
note to Co. Litt. 330 b." Rawle, Covenants for Title, 5th ed., § 38, note. 

• 3 Bl. Com. 167-8. * 3 Bl. CoBL 175. 



270 HARVARD LAW REVIEW. 

the death of the life tenant in possession ; and the second was the 
same as disseisin except that the would-be disseisor, or the ousted 
party, was the king. In the first there could be no disseisin, 
because the remainder man or reversioner did not have actual seisin. 
In the second there could be no disseisin, because the king could 
not take the subject's seisin, for that was held of the king and the 
king could hold of no one, while a subject could not take the king's 
seisin, for a subject must hold of the king, whereas the king's hold- 
ing was allodial.^ In intrusion, as in abatement, the dispossessed 
party had a right of entry as well as of action.* 

A feoffment by a tenant in tail in fee or in tail, or for the life of 
the feoffee was a discontinuance. So, too, prior to the Statute 32 
Henry VIII, c. 28, the alienation of a husband seised jure uxoris 
worked a discontinuance of the wife's estate. Moreover, " a dis- 
continuance is the effect of a disseisin, when, on certain events, the 
person disseised has lost his right of entry upon the disseisor and 
can only recover by action." ^ Where the tenant in tail worked a 
discontinuance, that meant that on his death neither the heir in tail, 
nor those in remainder or reversion, could enter, but instead they 
had only a right of action, requiring strict proof* 

Deforcement, while broad enough to include disseisin, abate- 
ment, intrusion and discontinuance, had also a narrower meaning 
when discriminated from them : " Such a detainer of the freehold 
from him that hath the right of property but never had any pos- 
session under that right, as falls within none of the injuries which 
we have before explained."* It covered, for instance, the case 
where the entry was originally lawful but the detainer has become 
unlawful, /. ^., where a lessee for years, after the expiration of his 
term, refuses to deliver up the possession.^ In deforcement, as in 

^ Taylor v. Horde, tupra^ at p. 109. Webb v. Marsh, 22 Can. Supreme Ct. 437, 441. 

« 3 Bl. Com. 175. 

s Hargrave & Butler's note to Litt. § 448. 

« 2 BI. Com. 198; 3 Bl. Com. 17 1-2. 

* 3 Bl. Com. 172-3. 

^ 3 Bl. Com. 173. Later, with reference to fines and the statutes of limitation, 
adverse possession was discriminated in English law from disseisin without being 
called deforcement. For instance, it was held that a tenant at sufferance could not be 
a disseisor since his entry was not wrongful. Doe z^. Perkins, 3 M. & S. 271. See 
Doe d. Souter v. Hull, 2 D. & R. 38. Yet, where it was wrongful for him to .stay in 
possession he could acquire title by adverse possession under the statute of limitations, 
since there the question was wholly one of whether the possession was inconsistent 
with a freehold in the real owner. Doe v, Gregory, 2 Ad. & E. 14. See Cholmondeley 
V. Clinton, 2 J. & W. i, 164. So a lease by a stranger and entry by the lessee was not 



CONVEYANCE OF LANDS BY DISSEISEE. 27 1 

discontinuance, there was no right of entry, but only a right of 
action.^ 

The terms having been defined, our first question is : Could the 
disseisee of lands convey them during the disseisin? Because at a 
given moment only one seisin was possible for a given piece of 
land, and because to make a valid conveyance of a freehold at 
common law it was necessary for the feoffor to hand this seisin 
over to his feoflfee by the ceremony known as livery of seisin,* this 
question of whether a disseisee could convey during the disseisin 
necessarily has very narrow limits. Indeed the limits are so 
narrow that the general impression is that the question is not 
debatable. 

So far as the ceremony of livery of seisin in fact is concerned, 
I. ^., livery of seisin where the parties actually went on the ground 
and there made the conveyance and performed the ceremony, the 
question certainly is not debatable ; for the entry by the disseisee 
for the purpose of the conveyance restored his seisin and so took 
away from him the character of a disseisee.* Where there were 
several in possession only the one who had the legal title had the 
seisin;* and while livery in deed required the delivery to the feoffee 
of what was known as a vacant possession, that seemingly was 
complied with where all persons who had any " lawful " estate or 
possession in the land conveyed joined in or consented to the livery 
or else were absent from the premises.^ 

a disseisin in fact, without an entry by force or an avowed intention to disseise. Jerrett 
V, Weare, 3 Price 575. But in 1833 by the Real Property Act of 3 and 4 Will. IV, 
c. 27 (amended in 1874 by 37 and 38 Vict. c. 57) the distinction between adverse pos- 
session and disseisin was ended in England. Nepean v. Doe d. Knight, 2 M. & W. 
894 ; see Culley v, Taylerson, 3 Per. ft Dav. 539. Under that act one gets title by 
limitation, not by virtue of adverse possession, but in general because certain fixed 
times have elapsed since the former owner acquired rights of entry, distress or 
action. 

1 3 Bl. Com. 175. 

* Livery of seisin was the formal delivery of possession necessary at common law 
where one, who by right or by wrong, had a freehold estate, conveyed to one who was 
to take a freehold estate. It should be discriminated from the feoffment of which it 
was a part. A feoffment included both ( i) a livery of seisin, i, e., an outward symbolic 
transfer of that possession which goes with a freehold, and (2) a statement in the form 
required by law of the precise freehold estate granted. The livery transferred the 
possession ; the statement of the estate granted fixed the rightful limits of that pos- 
session, or, in other words, defined the feoffee's title. Williams, Real Property, 17th 
«i., 139. 

* Co. Litt. 48 b, 49 a; see Knox v. Jenks, 7 Mass. 488. 

* litt S 701 ; see Ban* v, Gratz, 4 Wheat. (U. S.) 213, 223 ; 4 Kent Com. 482. 

* Shep. Touch. 213. It was because of the need of giving a vacant possession that 



272 HARVARD LAW REVIEW. 

But what about livery in law? There the feoffment was made 
not on the land, but in sight of it. Where a feoffment with such 
livery was made it was ineffective unless the feoffee actually entered 
during the life of the feoffor,^ or unless, not daring to enter for fear 
of his life or bodily harm, he made yearly his " continuall claime " ' 
in due form of law as near the land as possible ; ^ but if the feoffee 
entered in the lifetime of the feoffor, or in a proper case made due 
continual claim, it would seem, on principle, that he would get 
title even if the feoffor was disseised at the time of the feoffment.^ 
If the feoffee actually entered on the disseisor he would wrest the 
seisin from the disseisor and have it as effectually as if the disseisee 
had entered before the feoffment,^ while, if the feoffee made duly 
his continual claim he would accomplish the same result, because 
such continual claim constituted an entry in law, " which entry in 
law is as strong and as forcible in law as an entry in deed, and that 
as well where the lands are in the hands of one by title as by 
wrong." ® Neither Littleton nor Coke appears to discuss this case 
of a disseisee conveying by livery in law ; but that is probably be- 
cause they never knew such a case to ariseJ Such a conveyance 

"if a man entered and made a feoffment, the owner being upon the land, the feofifment 
was void." i Wash., Real Property, 5th ed., 35, § 78. 

^ " The death of either party [before entry] I agree would make it [livery in the 
view] void ; for if the feoffor dies his heir is in by descent ; if the feoffee dies and his 
heir enter, he must be a purchaser, which he cannot be by the feoffment not being 
made unto him, and by descent he cannot claim because his ancestor not entering, he 
was never seised." Poll. 48. 

* Continual claim was abolished in England by the Statute 3 and 4 WilL IV, 
c 27, § II. 

* 2 Bl. Com. 316. 

< Where Sheppard's Touchstone, speaking "Of a Grant*' said: "And therefore if 
a man have disseised me of my land, or taken away my goods, I may not grant over 
this land or these goods until I have seisin of them again" (Shep. Touch. 240), the 
language clearly had no application to feoffments, but only to grants. Besides, com- 
ing after Coke on Littleton, the author of Sheppard's Touchstone is subject to the 
comments on Coke made in note 7 infra. 

* " Where a man that hath title to enter, comes into possession, the law doth exe- 
cute the estate to him." Argument of Pollezfen in Parsons v. Perns, i Mod. 91. 

* As Littleton expresses it, where one entitled to make a continual claim makes it, 
" Presently by such claime hee hath a possession and seisin in the lands as well as if 
hee had entered in deed, although hee never bad possession or seisin of the same lands 
or tenements before the said claime." Litt § 419. See also 3 Bl. Com. 175. 

7 As late as Trinity Term, 28 Hen. VIII— a number of years after the death of 
Littleton — Shelley, J., said : " And no man ever saw a livery by the view unless for a 
cause material to suppose in enforcing the matter : as if to say that land was on the 
other side of the Thames to which the feoffor could not come for the water ; or at 
the door of a church, when a man endows his wife of land within the view, it is well 



CONVEYANCE OF LANDS BY DISSEISEE. 273 

was clearly possible under the principles which they laid down,^ and 
a strong argument in favor of its legality is found in the fact that 
while livery in deed required, as we have seen, the delivery of a 
vacant possession, the absence from the land of those having es- 
tates therein, or their consent if on the land, was not necessary in 
the case of livery in law.* It would therefore seem as if at com- 
mon law, despite the general assumption to the contrary, a dis- 
seisee by a feoffment made with livery in law could convey during 
the disseisin ; ^ but such livery was effective, if at all, only where 
the disseisee still had his right of entry as well as his right of action. 
Where the disseisee had only a right of action left, he had nothing 
to convey, for the common law doctrine against maintenance made 
the right of action non-assignable, but where he had his right of 
entry, that was sufficient interest in the land to enable him, by 
livery in law, to create a new right of entry in his feoffee,* even 
though the feoffor's own right of entry was not transferable.^ Since 

enough, for that is made in consideration of dower." Dyer 18 b. (On the dower 
point see 38 Edw. Ill, PI. 11, stated in Poll. 53.) The very early English conveyancers 
were too careful to experiment. 

In Littleton's time, therefore, the situation discussed in the text had not arisen, and 
Coke's subsequent failure to consider it is due to the fact that as he was not bom until 
after the passage of the Pretended Title Act, he had no occasion to consider anything 
but the effect of that act. 

^ That is, of course, apart from the Pretended Title Act. Coke saw that a convey- 
ance by a disseisee was prohibited by that act. Co. Litt. 369 a. 

* 5 Encyc. of Laws of Engl., 330. 

* A disseisee who, by continual claim, had recovered seisin from one who still con- 
tinued in adverse possession, could undoubtedly convey by feoffment with livery in 
law. That sort of case, and cases where a disseisor of short occupancy, and a disseisee 
of short reoccupancy, conveyed to people powerful enough to get the better of their 
opponents gave rise to the Pretended Title Act. 

* This new right of entry was really a power of attorney to enter. That was why it 
terminated on the feoffor's death, and moreover was why livery in law must be made 
by the party himself, though livery in deed could be given by attorney. Of course be- 
fore a man could authorize another to enter, he must himself have at least a right of 
entry ; but if he had that, then the power of attorney to enter which he gave to his 
feoffee by livery in law was irrevocable except by death. See Parsons v. Perns, 
I Mod. 91, where the marriage of the feoffor to the feoffee after a feoffment within 
view, and before entry, did not revoke the feoffee's power to enter under the 
feoffment. 

* A disseisee's own right of entry seems to have been untransferable, because, in its 
nature, too slight a thing to survive transfer. Coke, to be sure, gives the reason for 
its non-assignability to be maintenance, but that does not explain it satisfactorily. 
Maintenance will explain the non-assignability of the disseisee's right of action, but 
nothing short of inherent incapacity for transfer, unless authorized by legislation, will 
explain the non-assignability of his right of entry. By statute in England, and many 
states of the United States, rights of entry have at last been infused with enough 

18 



276 HARVARD LAW REVIEW, 

This statute ended all question as to the right of a disseisee to 
convey. Whatever may have been true before the statute, no one 
after it could convey during another's adverse possession so as to 
affect that other.^ 

The Pretended Title Act is often spoken of as an affirmance of 
the common law,' but it certainly went farther than the earlier 
law. By the earlier law a disseisor did not have to be in posses- 
sion a year before making a conveyance, but after this statute he 
had to do so. By the earlier law a disseisee did not have to wait 
a year after he re-entered before conveying, yet by a literal con- 
struction of this statute he was required to do just that,' though a 
more liberal construction was advocated^ All that can possibly 
be meant by calling the act an affirmance of the common law is 
that maintenance was interdicted by the common law, and this 
statute was aimed at one form of maintenance. The mischief at 
which the act was aimed " was that individuals possessed of rights, 
real or pretended, transferred them to persons more able, or more 
disposed, than themselves to litigate them. This was considered 
to be a great evil." ^ Despite the opinion of Montague, C. J., to 
the contrary,® this statute really altered the common law, for it 
made bad some conveyances which at common law were good. 



entry, except by release to the person in possession, were, therefore, previously to 
the statute of 8 and 9 Vict, dealings with 'pretenced' rights and titles within the 
meaning of the act of Hen. 8." ^Cotton, L. J., in Jenkins v. Jones, 9 Q. B. D. 128, 

I34-S- 

By sec. 4 of the act, one in possession for the year could purchase pretenced titles 
or get them in any reasonable ways. 

1 Co. Litt. 369 a ; Underwood tr. Lord Coartoun, 2 Sch. & Lef. 65. 

s Montague, C. J., in Partridge v. Strange, i Plowd. 77 ; Doe d. Williams v. Evans, 
I C. B. 717; Jenkins v, Jones, supra, at p. 135. See Hathome v. Haines, 1 GreenL 
(Me.) 238, 247 ; Bishop of Toronto v, Cantwell, 12 U. C. C. P. 607, 6ia 

* Hawkins' Pleas of the Crown, c. 86^ f 16. But see Co. Litt 369 a, iemble contra^ 
though Coke there says that if a disseisor die and the disseisee disseises the heir of the 
disseisor, the disseisee cannot convey for a year. Coke is supposed to be contra to 
Hawkins, because Coke says that if the disseisee release to the disseisor the latter may 
convey without waiting a year. Coke giving as a reason, that nobody is prejudiced by 
this action of the disseisor. The two can be reconciled by giving the better reason 
that by accepting a release from the disseisee the disseisor claims under him, and 
hence the disseisor and those under whom he claims have been in possession the year 
required by the statute. 

« Whitesides tr. Martin, 7 Yerg, (Tenn.) 383, 397 ; Kincaid v. Meadows, 3 Head 
(Tenn.) 188, 192, and see note 3, tupra, 

* Biaule, J., in Doe d. Williams v. Evans, mpra^ at p. 726 So Slywxight & Page's 
Case, I Leon. 166, 167. 

* See note 2, ii^o. 



CONVEYANCE OF LANDS BY DISSEISEE. 277 

In Mr. Rawle's excellent book on Covenants for Title, it is 
stated that under the Pretended Title Act and the English deci- 
sions about it " the offense of maintenance consisted not so much 
in taking a conveyance of the whole or part of a thing not vested 
in the party by whom it was made, as in taking it in consideration 
of assisting or maintaining a suit for its recovery," and that it is 
" well settled " in England that where the transfer is not made for 
the purpose of assisting or maintaining a suit the " mere fact of an 
adverse possession will not invalidate the conveyance." ^ But ex- 
cept as applied to the situation in England since the statute of 8 
and 9 Vict, c. 106, sec. 6, making rights of entry alienable, the 
authorities do not bear out the statements. Where the grantor was 
out of possession, or if in possession he, or those under whom he 
claimed, had not been in for a year before the conveyance, the 
conveyance was void under the Statute 32 Hen. VIII, whether it 
was in fact made for maintenance or not' This was clearly so 
where the grantee knew of the grantor's lack of possession.^ In 
other words, the statute established a presumption which could 
not be rebutted that such a conveyance was made for maintenance ; 
for as has pertinently been said : " The principal mischief con- 
templated by the act is the maintenance of an action by the pur- 
chaser upon the pretenced title. How is that mischief to be 
obviated except by making the conveyance void ?"* 

Under the Pretended Title Act, therefore, a conveyance was 
void if either the grantor was out of possession at the time, or the 
grantor, though in possession at the time, had not been in pos- 
session himself or by his ancestor, grantor, etc., for one year prior 
to the conveyance. What is meant by calling the conveyance 
void is uncertain under the English cases.^ It would certainly 
seem that the conveyance was a nullity as far as the adverse pos- 
sessor, his heirs and assigns were concerned,^ yet as between the 
dispossessed grantor and his grantee the conveyance undoubtedly 
was good, for while " there can be no doubt that conveyances of 
titles are made void [by the Statute 32 Hen. VIII] to the extent 

1 Rawle's Covenants for Title, 5th ed. § 48. 

* Doe d. Williams v. Evans, supra. See Smith v. Hall, 25 U. C. Q. B. 554, 556. 

* Slywright and Page's Cases, Golds. loi ; i Leon. 166. See Kennedy tr. Lyall, 15 
Q. B. D. 491, 495-^ 

* Maule, J., in Doe d. Williams v. Evans, supra^ at p. 721. 

* Aubrey v. Smith, 7 U. C. Q. B. 213, 215 (1850). What cases we have are mainly 
concerned with forfeitures under the act 

* Doe d. Williams v, Evans, supra. 



278 HARVARD LAW REVIEW. 

that is necessary to prevent the mischief which the act intended to 
remedy," ^ that mischief was simply the maintenance of an action 
by the grantee against the adverse possessor, and was fully de- 
feated by holding the conveyance void as to the adverse pos- 
sessor. Under the earlier Act of i Richard II, c. 9, by which it 
was provided that feoffments made by disseisors to lords and other 
great men, to have maintenance should " be holden for none and 
of no value," it was held : " That feoffments of this kind are only 
void in respect to the disseisees, but that they are effectual between 
the feoffor and feoffee." ' Such undoubtedly was also true of con- 
veyances forbidden by the Pretended Title Act, but it is only in the 
American cases that the problem is worked out 

The Pretended Title Act, if not wholly repealed, has been 
robbed in England of most of its efficacy. In 1845 the Statute 
8 and 9 Vict., c. 106, sec. 6, made rights of entry other than those 
for condition broken alienable by deed ; and while the Statute 32 
Hen. VIII may still forbid the sale of wholly fictitious titles, and 
render void the deed of one knowingly taking a wholly fictitious 
title, the Statute 8 and 9 Vict, makes valid every conveyance by 
a rightful owner who still has a right of entry, even if his lands 
are at the time of the conveyance in the adverse possession of 
another.' 

American Authorities. 

In the United States the distinction between disseisin and the 
other forms of adverse possession known to the old law has be- 
come obsolete.* We have even ceased to discriminate between 
disseisin and that adverse possession which will give title under the 
statute of limitations,^ though the old common-law conception of 

1 Maule, J., Ihid. at p. 727. 
• > Hawkins, P. C, c. 86, 418; Year Book, 27 Hen. VIII, p. 23, § b, i. So Beaumont, 
J., said in Upton v. Basset, Cro. Eliz., 445 : " A feoffment upon maintenance or cham- 
perty is not void against the feoffor, but against him who hath right.** 

* Jenkins v. Jones, supra; see Kennedy v. Lyall, supra. So under the Upper 
Canada Colonial Act of 14 and 15 Vict., c. 7, allowing the sale of rights of entry, 
it was held that while the sale of a right of entry could no longer be called a 
pretenced right, and the Statute 32 Hen. VIII was therefore so far repealed, the at- 
tempted conveyance by a party of a right which in fact he did not have, was still for- 
bidden by the Statute. Baby v, Watson, 13 U. C. Q.. B. 531. 

A disseisee's right of entry was made devisable in England in 1837. Prior to that 
time such a right of entry was not devisable. 1 Jarman, Wills 49, 50. 

* Smith V, Burtis, 6 Johns. Cas. (N. Y.) 197, 215. 

» Pickett V. Doc, 74 Ala. 122, 131 ; Unger v, Mooney, 63 Cal. 586, 590; Magee v. 
Magee, 31 Miss. 138, 151-a. See Barrett v. Love, 48 la. 103, 111-12. 



CONVEYANCE OF LANDS BY DISSEISEE. 279 

disseisin finds its expression in those states where possession is 
not adverse so as to give title, unless the one claiming adversely 
knows himself to be on another's land.^ It is still possible, how- 
ever, to say that a possession is adverse for one purpose and not 
for another.^ 

On the question of the right of the real owner of land to convey 
it while another is in its adverse possession, the states are divided. 
In several states the Statute 32 Hen. VIII, including the require- 
ment of one year's possession, has been substantially re-enacted,^ 
though in no state does the one year feature figure much in the 
decisions.^ In several other states, either by statute or by decision, 
it is declared simply that a conveyance of land during a third per- 
son's adverse possession of it is void,^ but in far the larger number 
of states the Statute 32 Hen. VIII, and the common-law doctrine of 
which it is supposed to be declaratory, are either abolished by 
statutes authorizing conveyances, notwithstanding there may be an 
adverse possession of the land,^ or else on grounds of public policy 

1 See Gnibe v. Wells, 54 la. 148 ; Mills r. Penny, 74 la. 172 ; Winn ». Abeles, 35 
Kan. 85 ; Watrous v. Morrison, 33 Fla. 261 ; Finch v. Ullman, J05 Mo. 255 ; Chance 
V. Branch, 58 Tex. 490. 

* " It is clear that possession may be adverse under the act of limitations without 
being adverse under the Champerty Act." Barret v. Coburn, 3 Met. (Ky.) 510, 514; 
Crary v, Goodman, 22 N. Y. 170; Fish v. Fish, 39 Barb. (N. Y.) 513; Smith v, Faulk- 
ner, 48 Hun (N. Y.) 186; Foxcroft v, Barnes, 29 Me. 128. But in Connecticut this is 
not so. Merwin v. Morris, 71 Conn. 555. 

» I N. Y. Rev. Stat. 739, f 147; N. Y. Penal Code, 8 130; N. Y. Code Civ. Pro., 
8 1501 ; N. Dak. Rev. Codes, § 7002 (Penal Code) ; Tenn. Code of 1896, ff 3171-5. 

In New York the Revised Statute makes the deed void and the Penal Code makes 
it a misdemeanor to buy or sell land of which the grantor, or those by whom he 
claims, have not been in possession for a year ; but the Code of Civil Procedure allows 
the grantee to bring ejectment in the grantor's name. 

* It may of course do so at any time. 

* Alabama: Dexter v. Nelson, 6 Ala. 68 ; Pearson v. Adams, 129 Ala. 157. Connec- 
ticut : Gen. Stats. (1888) § 2966. Fla. : Reyes v. Middleton, 36 Fla. 99. Ind. : Steeple 
V. Downing, 60 Ind. 478. Ky. : Gen. Stats, c. 11, § 2. N. C: Johnson v. Prairie, 94 
N. C. 773. N. Dak. : Rev. Codes (1889), § 7002; Galbraith ». Payne, 12 N. Dak. 164. 
Okla.: Stat. (1893) f 6i37* 

* Ark.: Stat. (1884) c. 27, f 644. Cal. : Civil Code. § 1047. Colo. : i Mills Ann. 
Stats. § 431. Dist. of Columbia: Code (1902), § 513. Ga. : Code (1882), f 2695. 
Idaho: Civil Code (1901), § 2293. ^^I- ^ i F. & C. Ann. SUt. c. 30, § 4. Iowa: 
McClain's Rev. Stats. (1888) § 3103. Kan.: Gen. Stats. (1889) § 1115. Me.: Rev. 
Stats, c. 73, § I, and c 104. Mass.: 2 Rev. Laws (1902), c. 127, § 6. Mich.: Rev. 
Stats. (1846) p. 263, § 71. Minn. : i Stats. (1878) c. 40, § 6. Miss. : Rev. Code (1880), 
§ 1 187. Mo.: I Rev. Stats. (1889) § 2400. Mont. : Comp. Stats. (1887) P- 663, § 268. 
Neb. : Consol. SUU. (1891) § 4355. Nevada: Gen. Stats. (1885) § 2603. Oregon: 
2 Hills Ann. Laws (1887), § 3009. R. I. : Gen. Laws (1896), c. 202, § 11 (authorizing 
conveyances of rights of entry and of action and so changing the rule of Burdick v 



280 HARVARD LAW REVIEW. 

are held by the courts to be obsolete.^ Most states started with 
the common-law doctrine. Several states and territories seem to 
have announced no rule or are uncertain.^ 

States Follaimng the Common- Law Rule. 

In those states where the common-law rule has prevailed, it has 
been held that so far as the adverse possessor and those in privity 
with him are concerned, the deed of an ousted owner is a nullity.' 
The deed is void no matter how good in fact the grantor's title 
was,^ nor how bad the disseisor's,^ and even if the disseisor origi- 
nally entered by permission of the true owner.^ The deed, how- 
ever, does not work a forfeiture of the grantor's title,^ and despite 

Burdick, 14 R. I. 574). S. Dak. : Rev. Codes (1903), p. 735, \ 996. Utah : Rev. Stats. 
(1898) S 1980. Vt. : Suts. (1894) § 2240. Va. : Code of Va. (1887) \ 2418. W. Va. : 
Code (1899), c. 71, S 5 (see Cassedy 2/. Jackson, 45 Miss. 397, 407). Wis.: Laws(i865), 
c. 365. Wyo. : Rev. Stats. {1899) \ 2735. 

1 CaL: (prior to sutute) Lucas v, Pico, 55 Cal. 126, 128; see Matbewson v. Fitch, 
22 Cal. 86. Del. : Doe d. Bright v. Stephens, i Houst. 31. D. C. : (prior to statute) 
Matthews v, Heyner, 2 App. Cas. 349. la.: (prior to statute) Wright v. Meek, 3 
Greene 472 ; Foster v. Young, 35 la. 27, 40. Md. : Schaferman v. O'Brien, 28 Md. 
565. N. H. : Farrar v. Fessenden, 39 N. H. 268 (so long as disseisee has a right of 
entry he can convey). N. J. : Den v, Geiger, 9 N. J. Law 225. Ohio : Hall v, Ashby, 
9 Oh. 96. Penn. : Stoever v. Lessee of Whitman, 6 Binn. 416; Cressin v. MiUer, 2 
Watts 272. S. C: Sims v. DeGraffenreid, 4 McCord 253. Tex. : Carter v, McDer- 
mett, 12 Tez. 545. 

The most conspicuous case is South Carolina, where, despite the fact that the 
Statute 32 Hen. VIII, c 9^ was enumerated by the legislature in the table of statutes 
in force in the state, the courts said it was " inapplicable under our usages." Poyas v. 
Wilkins, 12 Rich. (S. C.) 420. 

* Arizona, Louisiana, New Mexico, Washington. In Washington the deed of a 
record legal title holder passes to bona fide purchasers the full legal and equitable title, 
free from all claims not of record, i Hills Ann. Stats. \ 1448. On the civil law which 
prevails in Louisiana, see White v. Gay's Executors, i Tex. 384. 

* See 9 Cent. Dig. 2019, $ 54. It is useless to multiply cases on this point. One of 
the latest is Galbraith v, Payne, 12 N. Dak. 164. 

In Virginia the statute forbidding the conveyance of adversely held land (repealed 
in 1849) was construed so as to inflict a penalty without avoiding the conveyance (see 
Menemeyer v. Wright, 75 Va. 239, 245-6), but that doctrine was peculiar to Virginia. 
See note 4, p. 277, supra. 

The doctrine of the text applies only to deeds. A contract for the sale of lands 
adversely held is not bad. Edwards v. Parkhurst, 21 Vt. 472. Though equity will 
rescind such a contract at the suit of the buyer. Williams v. Carter, 3 Dana (Ky.) 198. 
And the grantor's heirs may resist successfully a decree for its specific performance. 
Bryanf s Heirs v. Hill, 9 Dana (Ky.) 67. 

« Tomb V, Sherwood, 13 Johns. Cas. (N. Y.) 288. 

* Jackson v. Todd, 2 Cal. (N. Y.) 183 ; Jackson v. Brinton, 12 Johns. Cas. (N. Y.) 452. 

* Barry v. Adams, 3 Allen (Mass) 493. 

7 Crowley v. Vaughan, xi Bush (Ky.) 517 ; Brinley v. Whiting, 5 Pick. (Mass.) 348, 
S55> 359 » Jiickaon v. Brinckerhoff, 3 Johns. Cas. (N. Y.) loi, 540. 



CONVEYANCE OF LANDS BY DISSEISEE. 28 1 

it he may maintain ejectment against the adverse possessor, 
champerty being no defence to the adverse possessor when the 
grantor brings ejectment.^ The grantee, however, cannot bring 
ejectment in his own name against the adverse possessor,^ even 
though the great weight of authority is, that as between the parties 
to it the deed is good ; ^ but in most states he may bring ejectment 
in the grantor's name, even if the grantor does not know of the 
action^ and recovery will inure to the benefit of the grantee.^ 

1 Doe V, Roe, 37 Ga. 5 ; Crowley v, Vaughan, 1 1 Bush (Ky.) 517 ; Jackson v, Vreden- 
bergh, i Johns. Cas. (N. Y.) 159; Coogler v, Rogers, 25 Fla. 853; Sibley v. Alba, 95 
Ala. 191 ; Green v. Cumberland, etc., Co., no Tenn. 35; Brinley v. Whiting, 5 Pick. 
(Mass.) 348; Stockton v, Williams, i Dougl. (Mich.) 546; Nason v, Blaisdell, 17 Vt 
216 ; Chamberlain v, Taylor, 92 N. Y. 348 ; Steeple v. Downing, 60 Ind. 478. 

But see Luen v. Wilson, 85 Ky. 503, holding that the champertous deed must be 
rescinded by the grantor in good faith before he can sue. 

And see Dever v, Hagerty, 169 N. Y. 481, holding that the grantor cannot maintain 
ejectment for the grantee against the adverse possessor after having released to the 
latter. 

9 Bream v. Cooper, 5 Munf. (Va.) 7 ; Prestwood v. McGowan, 128 Ala. 267 ; Crow- 
ley V, Vaughan, 11 Bush (Ky.) 517 ; Coogler v. Rogers, 25 Fla. 853 ; Lillie v, Hickman, 
25 S. W. Rep. 1062 (Ky.) ; Hoyle v. Logan, 4 Dev. (N. C.) 495 ; Wentworth v. Abbetts, 
78 Wis. 63 ; Mead v. Fitzpatrick, 74 Conn. 521 ; Tabb v. Baird, 3 Call (Va.) 475. 

The grantee cannot sue in his own name, even though he was ignorant of the adverse 
possession. Lowber v. Kelley, 17 Abb. Pr. 452. 

* Coogler V, Rogers, 25 Fla. 853 ; Steeple v. Downing, supra ; McMahan v. Bowe, 
114 Mass. 140; Farnum v, Peterson, tii Mass. 148; Pearson v. King, 99 Ala. 125; 
Luen V. Wilson, 85 Ky. 503 (but see Crowley v. Vaughan, 11 Bush (Ky.) 517) ; Stock- 
ton V, Williams, i Dougl. (Mich.) 546; Den v. Geiger, 9 N. J. Law 225; Hamilton v. 
Wright, 37 N. Y. 502 ; Livingston v. Proseus, 2 Hill (N. Y.) 526 ; Edwards v, Roys, 
18 Vt. 473; Middleton v, Arnold, 13 Gratt. (Va.) 489. 

But see conira Williams v. Hogan, Meigs (Tenn.) 187; Green v. Cumberland, etc., 
Co., f 10 Tenn. 35 ; Phelps v. Sage, 2 Day (Conn.) 151 ; Wentworth v, Abbetts, 78 Wis. 
63; Graves v. Leathers, 17 B. Mon. (Ky.) 665; Cardwell v, Spriggs, 7 Dana (Ky.) 36. 

* Cleverly v, Whitney, 7 Pick. (Mass.) 35; Coogler v. Rogers, supra. 

* Brinley v. Whiting, 5 Pick. (Mass.) 348 ; Coogler v. Rogers, supra ; Edwards v, 
Parkhurst, 21 Vt. 472; Galbraith v. Payne, 12 N. Dak. 164; Hamilton v. Wright, 37 
N. Y. 502; Sohier v. Coffin, loi Mass. 179; Wilson v. Nance, 11 Humph. (Tenn.) 188 ; 
Den V. Geiger, supra ; Steeple v. Downing, supra ; Stockton v. Williams, i Dougl. 
(Mich.) 546 ; Thompson v. Richards, 19 Ga. 594. 

But see contra Crowley v. Vaughan, 11 Bush (Ky.) 517; Baley v, Deakins, 5 B. 
Mon. (Ky.) 159; Key v. Snow, 90 Tenn. 663, semMs. 

In one state the deed is void as to the adverse holder, and yet by statute the grantee 
may sue the adverse holder in ejectment in the grantee's own name. Johnson v. 
Prairie, 94 N. C. 773 ; Osborne v. Anderson, 89 N. C. 261 ; see CampbeU v. Equitable, 
etc., Co., 94 N. W. Rep. 401 (S. Dak.). And such will probably be held to be the 
resalt effected by code provisions allowing actions to be prosecuted in the name of the 
real party in interest. See Dever v, Hagerty, 169 N. Y. 481 ; Steeple v. Downing, supra. 

The grantee must sue in the names of all his grantors. Hasbrouck v. Bunce, 62 
N. Y. 475. But a remote grantee of a disseisee cannot even sue in the disseisee's name 



282 HARVARD LAW REVIEW, 

The disseisee's deed is good against all the world, except the dis- 
seisor and those in privity with him.^ 

It is generally held that the grantor may release to the adverse 
holder despite his conveyance,' though not after his grantee has 
commenced an action against the adverse possessor in the grantor's 
name,^ and that the adverse holder, despite his knowledge of that 
conveyance, gets good title by the release, since the conveyance is 
as to him a nullity.^ But the heirs of the disseisee are not allowed 
by release to keep the disseisee's grantee from suing the disseisor 
in their names.^ Where the grantee knew of the adverse posses- 
sion when he took his deed he cannot sue the grantor for releasing 
to the adverse holder,® and in the absence of fraud he cannot sue 
the grantor on the covenants in the latter's deedJ It seems, how- 
Smith V. Long, 12 Abb. N. C. it 3. The grantor cannot prevent the grantee from 
suing in the grantor's name. Pearson v. King, 99 Ala. 125. 

1 McMahan v. Bowe, 114 Mass. 140; Galbraith v. Payne, 12 N. Dak. 164; Poor 
V. Horton, 15 Barb. (N. Y.) 485; University of Vt. v. Joslyn, 21 Vt. 52; Johnson v. 
Prairie, 94 N. C. 773 ; King v. Sears, 91 Ga. 577 ; Fort Jefferson Implement Co. v. 
Dapoyster, 51 S. W. Rep. 810 (Ky.) ; Livingston v. Proseus, 2 Hill (N. Y.) 526. 

The intimation in a few cases that a disseisee who has conveyed while disseised and 
thereafter regains possession can convey a good title to a second grantee is disproved 
by White v. Patton, 24 Pick. (Mass.) 324; Famum v, Peterson, 11 1 Mass. 148, 151. 

' Everenden V. Beaumont, 7 Mass. 76 ; Dever v, Hagerty, 169 N. Y. 481 ; Adams v. 
Buford, 6 Dana (Ky.) 406 ; Sessions v. Reynolds, 7 Smedes & M. (Miss.) 130 ; Williams 
V. Coundl, 49 N. C. 206. 

* Edwards v, Parkhurst, 21 Vt. 472; bat see Swett v. Poor, 11 Mass. 549. 

^ Everenden v. Beaumont, supra ; Swett v. Poor, supra ; Dever v. Hagerty, supra. 
See also Brinley v. Whiting, 5 Pick. (Mass.) 348 ; Tabb v. Baird, 3 Call. (Va.) 475 ; 
Betsey v. Torrance, 34 Miss. 132. 

A release by the disseisee to the disseisor is not forbidden by the Statute 32 Hen. 
VIII, c. 9^ nor by the common law, because such a release is really not a conveyance, 
but is rather an extinguishment of right ; it simply keeps any one from saying that the 
disseisor's holding is unlawful, or that he has no right to convey. That is why the 
word " heirs " was not necessary at common law for the disseisee to release a fee to 
the disseisor. Co. Litt. 9 b. Where the disseisor consents to the conveyance by the 
disseisee the latter's grantee gets (even against the disseisor) the title the grantor had. 
Cameron v. Irwin, 5 Hilt (N. Y.) 272; Mclntire v. Patton, 9 Humph. (Tenn.) 447. So 
a conveyance by the disseisor to the disseisee's grantee gives the latter a title good 
against all the world. Ft. Jefferson Imp. Co. v. Dupoister, 51 S. W. Rep. 810 (Ky.). 

* Pearson v. King, 99 Ala. 125, but see Swett v. Poor, supra. 

* Swett V. Poor, supra. The grantee's knowledge or ignorance of the adverse pos- 
session seems to make no other difference except on the question of the penalties 
under the Statute 312 Hen. VIII. Ignorance will save the grantee from the penalty. 
Etheridge v. Cromwell, 8 Wend. (N. Y.) 629. See Sherwood v. Barlow, 19 Conn. 471 ; 
Varrell v. Holmes, 4 Me. 168; Brinley ». Whiting, 5 Pick. (Mass.) 348; Pepper ». 
Haight, 20 Barb. (N. Y.) 429. That the penalties were not in force in Georgia, see 
Milsaps V. Johnson, 22 Ga. 105. 

» Graves v. Leather, 17 B. Mon. (Ky.) 665 ; Walters v. Hutton, 85 Tenn. 109. But 



CONVEYANCE OF LANDS BY DISSEISEE. 283 

ever, that the grantee can release to the disseisor and so perfect 
the latter's title,^ or if he does not do that, can recover the land of 
the grantor if the latter regains possession.' Moreover, equity will 
not decree a rescission of the deed at the suit of the grantor ^ any 
more than it will enjoin an action by the grantor for the purchase 
money, or compel the return of consideration paid,^ but in general 
will leave the parties to their legal remedies. 

A deed may be void as to one piece of land adversely held, and 
good as to other pieces not so held.^ In New York a deed of a 
large parcel not adversely held will pass title to a small part, not 
in the grantor's possession because of a disputed boundary line,^ 
and to appurtenant rights in dispute ; ^ and in Massachusetts, 
though in such case the title to the small part was held not to 
pass,^ the grantee by removing the fence to the true line and 
remaining in possession could defend on his grantor's title.^ 

Adverse possession, moreover, need not have existed for any 
special time to make a deed bad ; it is enough that it exists at the 

see Farnum v. Peterson, iii Mass. 148, 151, where there is a dkium contra^ and see 
Crowley v. Vaughan, 11 Bosh (Ky.) 517. 

^ Famom v, Peterson, supreu 

' Coogler V, Rogers, 25 Fla. 853. The traditional statement that the title remains 
in the grantor, but that as between himself and his grantee he is estopped to deny that 
it has passed to the grantee (see Farnum v. Peterson, supra^ at p. 151 ; 4 Kent Com. 
448) should be abandoned. The true way of looking at it is to say that the title has 
passed to the grantee, but that the adverse holder cannot be prejudiced by that fact 
and cannot use it as a defence to an action of ejectment brought by the grantor. 

* Ruffin V. Johnson, 5 Heisk. (Tenn.) 604. It has also been held that equity will 
set aside the conveyance at the suit of the adverse holder, but will not vest the fee in 
the latter. Wellman v. Hickman, i Smith (Ind.) 407. 

^ Wood worth v. Janes, 2 Johns. Cas. (N. Y.) 417 ; Miller v. Mulvey, 7 Ky. Law. 
Rep. 40. See Waters v. Hutton, 85 Tenn. 109. 

* Goodman v, Newell, 13 Conn. 75 ; McSpadden v, Starrs Mtn. Iron Co., 42 S. W. 
Rep. 497 (Tenn.) ; SlaUon v. Tenn. Coal, etc., Co., 109 Tenn. 415; Towle v. Smith, 2 
Robt. (N. Y.) 489. 

But the grantee may nevertheless be prosecuted for maintenance (Varrell v. Holmes, 
4 Me. 168) and the penalty recovered for the part adversely held. Hyde v, Morgan, 
14 Conn. 104. 

* Danziger v. Boyd, 120 N. Y. 628 ; Clark v, Davis, 28 Abb. N. C. 135; Allen v, 
Welch, 18 Hun (N. Y.) 226. See Norwalk Heating, etc., Co. v. Vernon, 75 Conn. 662, 
where an adjoining structure projected over the land. And see Laverty v. Moore, 33 
N. Y. 658; Small v. Hamlet, 68 S. W. Rep. 395 (Ky.), in accord with New York; 
Percifull v. Coleman, 72 S. W. Rep. 29 (Ky.). 

' Coming v. Troy, etc.. Factory, 40 N. Y. 191. 

' Boston, etc., R. R. Co. v. Sparhawk, 5 Met. (Mass.) 469. See Watrous v, Mor- 
v^son, 33 Fla. 261, 282, accord. Of course under the present Massachusetts statute it 
would pass. 2 Rev. Laws (1902) c. 127, § 6. 

* Cleaveland v. Flagg, 4 Cush. (Mass.) 76 ; Sparhawk v. Bagg, 16 Gray (Mass.) 58^ 



284 HARVARD LAW REVIEW. 

time the deed is delivered.^ So where the year's possession is not 
required, the adverse possession need not have been ended for any 
particular length of time to make the deed good ; and therefore, 
where the disseisee peaceably enters upon the land and there 
delivers the deed, the grantee gets the tide despite the adverse 
possession.* The entry restores the seisin to the disseisee suffi- 
ciently to pass title against the disseisor as well as against others.^ 
So where the disseisor abandons the land and the disseisee's grantee 
enters, or the grantee enters on the land when it is vacant, it seems 
that the grantee's title becomes indefeasible.* 

A grantee who knows of the adverse possession may yet get 
tide by relation under his deed if it was executed in pursuance of 
a binding contract entered into before there was any adverse pos- 
session.^ The fact, however, that a grantee does not actually know 
of an existing adverse possession does not give him title as against 
the disseisor, for the adverse possession is constructive notice;^ 
furthermore, the disseisee, having only a right of entry and a right 
of action, cannot pass them as against the disseisor. 

States Abrogating the Common-Law Rule. 

In those states where the Statute 32 Hen. VIII, c. 9, and the 
common-law rule have been abrogated, there can be no doubt that 
a disseisee transfers to his grantee both his right of entry and his 
right of action.^ In such states the grantee can sue wherever his 
grantor could,^ and it is held that the grantee, acquiring no more 

1 Cornwell v. Clearing, 87 Hun (N. Y.) 50; Green v, Cumberland, etc, Co., no 
Tenn. 85; Sohier v. Coffin, loi Mass. 179; Logan v, Pheniz, 66 S. W. Rep. 1043 
(Ky.) ; Snyder v. Church, 70 Hun (N. Y.) 428 ; Kincaid v. Meadows, 3 Head (Tenn.) 
188; Howard v, Howard, 17 Barb. (N. Y.) 663. 

* Warner v. Bull, 13 Met (Mass.) i; Farwell v, Rogers, 99 Mass. 33; Birthright 
V. Hall, 3 Munf. (Va.) 536. 

* But this is not so where the grantor has lost his right of entry before going on the 
land. Foster v, Abbott, 8 Met. (Mass.) 596. 

* McMahon v, Bowe, 114 Mass. 140, semble ; Cleaveland v. Flagg, 4 Cush. (Mass.) 
76, 82 ; Snow V, Orleans, 126 Mass. 453. See Leach v. Woods, 14 Pick. (Mass.) 461 ; 
Wade V. Lindsey, 6 Met. (Mass.) 407. 

* Jackson v. Bull, i Johns. Cas. (N. Y.) 81 ; Harral v, Leverty, 50 Conn. 46; Mid- 
dlesborough, etc, Co. v. Neal, T05 Ky. 586 ; Cardwell v, Spriggs' Heirs, 7 Dana(Ky.) 36. 

* Jackson v. Demont, 9 Johns. Cas. (N. Y.) 55; Bernstein v. Humes, ^\ Ala. 
260; Lowber v. Kelly, 17 Abb. Pr. 452. Contra^ Sewall v. Draughn, 44 S. W. Rep. 210 
(Tenn.). 

^ The Massachusetts statute is expressly so worded. Stats, of 1891, c 354. That 
title passes, see Walden v. Gratz, i Wheat (U. S.) 292. 

* Conn's Heirs v. Manifee, 2 A. K. Mar. (Ky.) 396 ; Young v, Kimberland, 2 Litt 



CONVEYANCE OF LANDS BY DISSEISEE. 28$ 

and no less than his grantor had, takes subject to the statutes of 
limitation which had begun to run against the grantor.^ While 
under our modern procedure the grantee can sue the disseisor in 
the grantee's own name, his right of action is really founded on his 
grantor's seisin and must be so regarded wherever that fact is 
material ; for it is the grantor's right of entry and right of action 
that he owns and exercises. Indeed, that is why the grantee 
takes subject to the equities of the open adverse holder wherever 
possession is notice.^ 

In closing, some explanation should be offered of the fact that in 
a number of our states the old doctrine in some form still survives. 
Indeed, it receives vigorous support in one of our newest states.' 
Perhaps the best explanation is that given for the Tennessee stat- 
utes. Of them it has been said : ** It was no fear of nobles or 
great men or their influence with courts and juries that produced 
these Tennessee statutes . . . but it was the hostility of public 
sentiment to the * land sharks ' who were speculating in litigation 
over defective titles, and particularly to lawyers lending themselves 
to this speculation for profit, which provoked statutes seeking to 
enlarge the English acts just because they did not reach the evil 
sought to be suppressed." * Whatever the reason, the old doctrine 
retains, and for some time will retain in several states, considerable 
vitality. 

George P. Costigan^Jr, 

Lincoln, Nebraska. 



(Ky.) 223 ; Austin v. Stevens, 24 Me. 520 ; Dillon v. Dougherty, 2 Grant Cas. (Pa.) 99 ; 
Chicago V. Vulcan Iron Works, 93 111. 222. This is so even though the deed was 
given just to enable him to sue in the federal courts. King v. Sears, 91 Ga. 577. 

1 Shortall v, Hinckley, 31 III. 219. 

« Hadduckv. Wilmarth, 5 N. H. 181. 

* See Galbraith v. Paine, 12 N. Dak. 164. 

« Byrne v. Kansas City, etc., R. R. Co., 55 Fed. Rep. 44, 47 (Circ. Ct., W. D. Tenn.). 



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ExEMPnoN OF State AGENaES from Taxation by the National Gov- 
ernment. — The preservation of our dual system of government demands 
that the means employed by each sovereign in performing its proper gov- 
ernmental functions be exempt from taxation by the other sovereign, since 
it would otherwise be within the power of one, by excessive taxation, to 
cripple the operations of the other. ^ For this reason a state cannot tax a 
national bank,' nor the salary of a federal officer.* Conversely, the United 
States cannot impose stamp duties upon the judicial process of state courts,* 
or the official bonds of state officers,* or upon tax deeds issued by a state ; • 
nor can it forbid the recording under state laws of an unstamped mort- 
gage,^ or tax the salary of a state officer,* or the income of a municipal cor- 
poration, since that is a division of the state.* A federal tax on the bond 
required by state law from a saloon-keeper to secure compliance with 
statutes regulating the sale of liquor has also been held invalid as an inter- 
ference with the means adopted by the state under its police power to 
regulate the liquor trade,^* although it is hard to see how such a tax 
impedes the state in such regulation. 

1 See Cooley, Const. Lim., 7th ed., 680, 683. 
« M'CuUoch V. Marjfland, 4 Wheat. (U. S.) 316. 

* Dobbins v. Commissioners of Erie County, 16 Pet. (U. S.) 435. 
« Fifield V. Close, 15 Mich. 505. 

* Sute V. Garton, 32 Ind. i. 

* Sayles v. Davis, 22 Wis. 225. 
^ Moore v. Quirk, 105 Mass. 49. 

* Collectors. Day, 11 Wall. (U.S.) 113. 
" " " " R. Co '^ ' 



• U. S. «r^R. R. Co., 17 Wall. (U. S.) 322; Pollock v. Farmers' Loan and Trust 
100 Fed. Rep. 70 ; Ambrosini v, U. S., 187 U. S. i. 



Co.. 157 U. S. 429. 
w U. S. V. Owens, 



NOTES. 287 

As the scope of the state's operations widens with the growing complexity 
of social and economic conditions, the problem of determining what are 
proper governmental functions becomes increasingly difficult This is illus- 
trated by a recent case in the Supreme Court of the United States. The 
state of South Carolina, in its efforts to regulate the liquor traffic, had estab- 
lished a dispensary system, and prohibited the sale of liquor by any but its 
own officers, who sold under certain wholesome restrictions. Under its 
internal revenue system, the United States imposed upon the dispensers a 
license tax, from which the state claimed exemption on the ground that 
the dispensary system was a means employed by it in the execution of its 
police power. The court, however, though bound by a previous ruling ^^ 
to concede that this dispensary system was a valid exercise of the state's 
police power, supported the tax on two main grounds : first, that unless it 
were held valid, the states might cut off the nation's income by engaging in 
all the industries subject to internal revenue taxes; and second, that in 
carrying on the liquor business the state was not performing the ordinary 
functions of a government. A minority of the court, in a strong dissenting 
opinion, took issue on the second point, and further argued that not only 
did the first point lose its force because of the undoubted power of the 
states to cut off the nation's revenue directly by absolutely forbidding the 
sale of liquor entirely, but also that it amounted to this : '* that the govern- 
ment created by the Constitution must now be destroyed, because it is pos- 
sible to suggest conditions, which, if they arise, would in the future produce 
a like result." State of So, Carolina v. U> S., U. S. Sup. Ct., Dec. 4, 1905. 

Though opinions may differ as to what are the proper functions of state 
government, it seems that the majority of the court, influenced by the 
nightmare of a socialistic state contributing nothing to the national revenue, 
drew the line in this case much too sharply. Nothing comes more clearly 
within the police power of a state than the liquor trade. Nothing is more 
clearly a governmental function than the exercise of the police power. If, 
as the Supreme Court itself has held,^^ the state in engaging in the liquor 
business, is making a valid use of its police power, and is not engaging in a 
private business for profit, it would seem to follow that in so doing it is per- 
forming a governmental function which must not be interfered with by 
taxation. 



Powers Coupled with an Interest. — The authority of an agent may, 
in general, be revoked at will by a principal. But where a power of attor- 
ney is given as security, it is irrevocable inter vivos} To the general nile 
that all agencies are terminated by the principal's death, the only well- 
recognized exception is that of a power coupled with an interest. The act 
of the agent being conceived of as the act of the principal, this necessarily 
follows, since the act of a dead principal would be an impossibility ; but 
where the agency is coupled with an interest, the act may be valid as the 
act of the agent even after the principal's death. To define this interest, 
therefore, becomes of grave importance. 

The prevailing American view is that the interest must be an interest 

" Sec Vance v. Vandercook Co. (No. i), 170 U. S. 438. 
w Vance v. Vandercook Co., supra, 

1 Walsh V. Whilcomb, 2 Esp. 565. 



288 HARVARD LA IV REVIEIV. 

in the thing itself which constitutes the subject matter of the agency, and 
not a mere interest in the proceeds from the exercise of the power.* Thus 
a power of sale in a mortgage, a power to carry on a business together with 
an assignment of the business, are powers coupled with an interest ; * while 
a power to sell property and reimburse one's self from the proceeds, a power 
to an insurance agent to retain fifty per cent of the premiums as commis- 
sions, are examples of powers not coupled with an interest^ Mere posses- 
sion of the subject matter of the agency has been held in an early New 
York case to be such an interest as will render the power irrevocable,* 
though this seems to be doubted in a recent decision of the Appellate 
Division of the New York Supreme Court which fails to mention the earlier 
adjudication. Hoffman^ Administrator v. Union Dime Savings Institution, 
109 N. Y. App. Div. 24. An apparent extension of the rule to an entirely 
new class of cases is made by the United States Supreme Court in holding 
that a power given to a firm of attorneys to prosecute and compromise a 
suit and to receive a percentage of the proceeds as compensation is not 
terminated by the principal's death, being coupled with an interest* Its 
principle has, however, been limited and in effect, it would seem, overruled 
by a subsequent decision of the same court in which the only distinction 
made was that the authority did not include a power to compromise.' The 
trend of recent decisions seems to favor strongly the narrower definition.^ 
The conception of a power coupled with an interest is found in Coke, whose 
definition corresponds with that to be found in the American cases.* 

The modern English view, however, is said to be broader. Where a 
power is given for a valuable consideration to secure some benefit to the 
donee of the authority, the power is said to be coupled with such interest 
as to make it irrevocable. ^° This does not require an interest in the subject 
matter of the agency; an interest in the proceeds from the exercise of 
the power is sufficient. On the continent, indeed, the law seems setded 
in favor of the broader rule.^^ The issue in the English cases, however, 
was as to the revocability of the power inter vivos, an entirely different 
thing from its termination by death ; and they could have been decided in 
the same way under the narrower rule laid down by Chief Justice Marshall* 
While the statements of text-writers and the language used by courts un- 
doubtedly do go so far as to consider such a power not terminated by the 
principal's death, no express decision has been found in support of the 
broader doctrine. 



Civil Liability Arising from Violation of Municipal Ordinances. — 
An exception, everywhere recognized in the United States, to the fun- 

* Hunt V, Rousmanier's Admrs., 8 Wheat. (U. S.) 174. 

* Conners v. HoUand, 113 Mass. 50 ; Durbrow v. Eppens, 65 N. J. Law 10. 

* Fisher v. Southern Loan & Trust Co., 138 N. C. 90 ; Andrews v. Travelers' Insur- 
ance Co., 24 Ky. Law Rep. 844. 

» Knappv. Alvord, 10 Paige (N. Y.) 205. 

* Jeffries, Admr. v. The Mutual Life Insurance Co., 110 U. S. 305. 
' Missouri, ex rel. Walker v. Walker, 125 U. S. 339. 

8 Fisher v. Southern Loan & Trust Co., supra ; Andrews ». Travelers' Insurance 
Co., supra ; Black v. Harsha, 7 Kan. App. 794. 

* Co. Litt. 49b, 52b, i8ib. 

'^^ Smart v. Sandars, 5 C. R. 895, 917 ; In re Hannan's Express Gold Mining & 
Developing Co., [1896] 2 Ch. 643. 
" See I Holtzendorff, Encyklopadie der Rechtswissenschaft 599. 



NOTES. 289 

damental rule that the authority to make laws cannot be delegated by 
the legislature, allows certain powers of local legislation to be conferred 
upon municipal corporations. The police powers of the state are commonly 
granted to municipalities, and ordinances passed under that delegated power 
are as binding within the municipal limits as are the acts of the legislature 
itself.^ There is no conflict as to the direct effect of such ordinances, but 
courts differ in interpreting the indirect effect The Supreme Court of 
Missouri recently refused to follow the earlier decisions in that state," 
which hold that civil liability between individuals cannot be created by 
municipal ordinance. Sluder v. St Louis Transit Co., 189 Mo. 107. 

It is the generally accepted doctrine that such liability may result from 
legislative enactment and that a private individual can recover in a tort 
action if he is damaged by a breach of duty imposed by the legislature. 
Courts state the ground for recovery in different ways. Some call the 
breach negligence per se.^ Others call it prima facie evidence of negli- 
gence.* They all go so far as to hold that if the legislature imposes a duty 
which is owed to citizens as individuals and not to the municipality or 
public at large, a plaintiff to whom the duty is owed, can, unless the legisla- 
ture has showed a contrary intent, recover for damage caused to him by a 
breach. The liability of the defendant is really not based upon negli- 
gence, as the exercise of care cannot be offered as a defense. Nor is 
he absolutely liable for the results of his unlawful action, for it has been 
held that the defendant may show a justification for his violation of the 
law and thus escape civil liability.' It is of course necessary for the 
plaintiff to establish the causal relation between the defendant's breach and 
his own damage in order to make out his case, and the mere fact that the 
defendant is acting unlawfully at the time is not enough to make him liable.* 
The liability results from the legislature's implied intent to impose it. The 
duty in many statutes is created wholly or in part for the benefit of individ- 
uals. The temptation to violate the duty for the sake of pecuniary gain 
is frequently so great that it is advisable to add to the penalty expressly im- 
posed civil liability in those cases where the breach results in damage to an 
individual. 

A few jurisdictions refuse to allow a tort action when the duty is imposed 
by a municipal ordinance.^ They argue that the municipality is empowered 
to pass laws for